Keywords: retaliation; employment discrimination
The Supreme Court took the opportunity to clarify the law regarding retaliation in employment discrimination cases. Although the present cases do not arise under the ADA, they have had a direct bearing on the interpretation of retaliation, specifically the burden of proof and “reasonable business justifications,” within ADA claims. Each decision ultimately favors employees, and expands their ability to bring claims for retaliation.
In short, the court in Crawford clarified what it means to “oppose” unlawful behavior. Specifically, opposition does not only mean filing a lawsuit (or threatening to file one). It also includes complaining of the unlawful conduct exclusively within the company, as well as participating in an internal investigation about a co-worker’s conduct. The court used the plain meaning of the term “oppose” to define how it operated in retaliation lawsuits.
In Meacham, the court clarified that the employer bears the burden of proving that a decision to fire an employee, which has a disparate impact on a member of a protected class, was reasonable. This is an important difference from requiring the fired employee(s) to show that a “business justification” was lacking.The clarification of the legal standard for “opposition”, as well as placing the burden for proving defenses on the defendant, is expected to make it easier for potential plaintiffs to bring claims. Below is a more detailed analysis of how these decisions were reached, and other potential impacts they may have.
555 U.S. 271, Supreme Court
Plaintiff, Vicky Crawford, was an employee of the Metropolitan Government of Nashville and Davidson County, Tennessee for thirty years before she was fired in early 2003. Prior to that action, in the fall of 2001, Metro hired Dr. Hughes as the employee relations director for the school district. As part of his duties, Dr. Hughes was responsible for investigating complaints of discrimination. In May of 2002, Dr. Hughes was contacted by an attorney from the Metro Legal Department who explained that he had received multiple concerns from the administrative offices about incidents of sexual harassment by Dr. Hughes. The complaint was re-directed to Dr. Garcia, the director of schools, because of the conflict of interest. Ms. Frazier, the assistant director of human resources, was assigned to investigate the complaint. To begin her investigation, Ms. Frazier contacted employees who had worked with Hughes, in order to conduct an interview with them. One of those employees was plaintiff Crawford.
During the internal investigation, Ms. Crawford alleged that Hughes had sexually harassed her and other employees. Ms. Crawford’s allegations included Hughes putting his crotch up to the window of her office, and on one occasion walking into her office, grabbing her head, and pulling it towards his crotch. Though Ms. Frazier’s final report concluded that Mr. Hughes had engaged in “inappropriate and unprofessional behavior,” no adverse action was taken against him. Ms. Crawford, however, was subsequently fired from her position, after being accused of embezzlement and drug use. The charges, it was later determined, were unfounded. Moreover, three other employees, who had made similar allegations against Dr. Hughes, were terminated from their positions at Metro.
The District Court for the Middle District of Tennessee found for Metro. They reasoned that Crawford had not actually “opposed” unlawful action, because she did not file a complaint. Further, Crawford was not “participating” in an investigation because, in the Sixth Circuit, the “investigation” must arise from an EEOC complaint, which was not present here. The District Court found that, therefore, participating in an employer’s internal investigation was not enough to satisfy either “opposition” or “participation” within the definition of retaliation.
The Sixth Circuit Court of Appeals affirmed. They reasoned that “opposition” meant consistent, active opposition to unlawful action. They followed the same reasoning as the District Court for their “participation” analysis. The Supreme Court granted review.
The Supreme Court looked first to the plain meaning of the term “oppose.” Because Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against an employee (based on race, color, religion, sex and national origin), who has opposed an unlawful action, the Court reasoned that the plain meaning of “oppose” should determine the outcome of retaliation actions, and not the Sixth Circuit’s own definition of oppose. The Supreme Court ultimately found that Crawford’s complaint, “an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee,” fell within the common understanding of “oppose.”The Court cited a number of reasons necessitating the change of the Sixth Circuit’s more restrictive “opposition” standard. First, they argued that the primary objective of Title VII is avoiding harm to employees. If Title VII did not protect employees from reporting discrimination internally, this goal would be substantially undermined. Second, they cited studies indicating that fear of retaliation is the number one reason employees stay silent and do not report discrimination and harassment in the workplace. Third, the Court has previously recognized as “opposition” an employee’s refusal to follow an order that the employee believes is discriminatory, even if they resist it only once. There is no reason, the Court argues, to require any different standard for reporting illegal conduct internally.
554 U.S. 84, Supreme Court
As a result of efforts to reduce staff, a research laboratory in upstate New York terminated 31 employees, 30 of whom were over the age of 40. Knolls Atomic Power Laboratory was owned by the Department of Energy and followed staffing limits formulated by the Department of Energy and the Navy. As a result of these limitations, the lab was told to compile a list of employees to be terminated. The lab utilized an employee ranking based on a number of criteria, including performance, flexibility, whether the employee could be trained in other areas of the lab, and whether the skills of the individual employee were critical to the workings of the lab. After employees were ranked, managers of the lab were instructed to identify those with the lowest scores for termination.
Twenty-eight (28) of the 30 laid-off employees (all of whom were over age 40) sued, alleging disparate impact and disparate treatment under the Age Discrimination in Employment Act (ADEA). The “disparate treatment” claim was that Knolls implemented a reduction plan that was designed to eliminate older workers. In the alternative, the “disparate impact” claim was that, regardless of the plan’s intent, older employees were impacted by the plan far more often than younger workers, to the point that the plan was functionally discriminatory.
The jury found for Plaintiffs at the district court level on the disparate impact claim (but not on the disparate treatment claim). The Second Circuit Court of Appeals affirmed, applying a burden shifting analysis. This analysis first required the plaintiffs to show that subjective elements of the decision making process caused the disparate impact. After that was shown, the defendants were given the opportunity to provide a facially legitimate business justification. Finally, the plaintiffs would have the opportunity to show that the stated reason was pretext.
However, on review, the Supreme Court vacated that judgment, in light of a different case, Smith v. City of Jackson, 544 U.S. 228, which had been decided after the Court granted review to hear the Meacham case but before it heard arguments in the case. On remand, the Second Circuit reversed their prior decision, and found for Knolls. They reasoned that Smith changed the test from “business justification,” used by the appellate court, to a “reasonable factor other than age”, which made their prior decision untenable. The Supreme Court again granted review.
Under the ADEA, employees over the age of 40 are protected from age-related discrimination. Discrimination can be proven if adverse employment actions demonstrate a “disparate impact” on those over the age of 40. Employers, however, are not liable if they can demonstrate that the action, which appears to discriminate on the basis of age, was based on a reasonable factor other than age.
The Court, stating that they were interpreting the ADEA as Congress wrote it, held that the “reasonable factor other than age” defense places the burden of proof on the employer. First, because it is an affirmative defense, the party asserting the defense should bear the burden of proving that defense. Likewise, the party who stands to benefit from a claimed exemption should bear the burden of proving that exemption. Second, the Court noted that similar provisions in other discrimination laws, like the Equal Pay Act, have been treated as affirmative defenses with the burden on the employer. The Court therefore asks only whether the decision, despite being age-based, was reasonable. The burden to show that it was reasonable, however, is on the employer.
The decision in Crawford is important because it establishes a simpler standard for what “oppose” means in the retaliation context. That decision is not limited to gender discrimination, but will impact how retaliation is viewed more broadly, including in ADA cases. The Supreme Court here established a clear preference for encouraging plaintiffs to bring discrimination claims. That comports with the goals of most employment anti-discrimination statutes, which are designed to prevent harm to employees.
Similarly, in Meacham, the Supreme Court established a standard that favors the employee. If an employer seeks to benefit from an exemption or an affirmative defense under any anti-discrimination statute, they will bear the burden of proving that exemption or defense. This also may encourage plaintiffs to bring discrimination lawsuits, because the burden will now definitively be on their employer to prove that the plan or action was otherwise reasonable.These decisions, together, signal a move from the Supreme Court towards the important statutory goals of preventing employment discrimination, by removing or decreasing some bars for plaintiffs with legitimate claims.