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On Campus Recruiting and Age Discrimination
10/19/2016
By: Donald Berner

In a recent decision, the 11th Circuit Court of Appeals ruled that on campus hiring programs used by employers cannot serve as the basis for an age discrimination claim.  The issue resolved by the Court revolved around whether older applicants can make the claim that on campus hiring creates a disparate impact against older applicants.  The disparate impact theory approach was rejected by the Court requiring older applicants to bring claims only for intentional bias.  In plain language, the idea that on campus hiring disadvantages older applicants was rejected by the Court as the grounds for a hiring discrimination claim.   

Employers should keep in mind that this ruling directly applies to only a couple of states in the southeast.  The issue is still unresolved for most of the country, although this ruling would be persuasive in other areas.  This is an issue to keep an eye on as other jurisdictions grapple with these types of age discrimination claims from older applicants. 

 
Termination Case Goes South
01/20/2015
By: Donald Berner

A recent decision in a Texas federal court case highlights for employers the dangers of a sloppy termination process.  The basic story is an employer terminated the employment of a 55 year old employee for having a poor attitude and poor work performance.  The employee's story differed in that he claims he met all requirements and his supervisor harassed him.  The parties ended up in litigation and through the discovery process the employer's termination process began to unravel.  The employer's basis for the termination came into doubt when the supervisory team could not identify who made the decision to terminate the employee.  Multiple supervisors pointed in different directions as to the identity of the person making the decision.  In addition, the employer failed to follow its own progressive discipline policy with respect to the employee.  These flaws in the termination process resulted in the court providing the employee the opportunity to present his case to the jury at a trial.  This outcome is a significant loss for the employer and will likely result in the employer choosing to settle the case with the employee rather than go forward to a trial.

Looking back at the facts of the Texas case, there are a couple simple and obvious lessons for other employers.  First, ensure in any termination of employment that you follow your own company policies/procedures.  If you fail to follow your own policies/procedures a court or agency will doubt the truthfulness of story you tell regarding the termination.  Second, make sure your management team is on the same page with the decision-making process.  If      Continue Reading...

 
Supreme Court Begins New Term
10/02/2012
By: Boyd Byers

Yesterday the Supreme Court officially opened its 2012-2013 term. The justices denied review of 304 cases, including 48 employment-related decisions. One of these cases is particularly significant for Kansas employers. 

In that case, the Court let stand a ruling by the U.S. Court of Appeals for the Tenth Circuit in favor of a Kansas school district. The appeals court had held that the Lilly Ledbetter Fair Pay Act applies only to claims that employees did not receive equal pay for equal work, and that this does not encompass demotion claims, even if the demotion results in a pay cut. (The Ledbetter law, as you may recall, amended Title VII, the ADEA, and the ADA to provide that the time for filing a pay discrimination claim is triggered with each paycheck that reflects a past discriminatory compensation decision or practice.)  Accordingly, the Ledbetter Act did not excuse two school custodians’ failure to file a timely age discrimination claim within 300 days of learning of their demotions. The case is titled Almond v. Unified Sch. Dist. 501.
 
 
EEOC Issues Final ADEA Regs
04/02/2012
By: Boyd Byers

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed      Continue Reading...

 
Supreme Court News
12/12/2011
By: Boyd Byers

One perk of being on the U.S. Supreme Court is that you get to decide which cases you want to hear and which ones you don’t. Most cases cannot be appealed to the Supreme Court as a matter of right. So a losing party seeking Supreme Court review must file a petition for writ of certiorari, which must be granted by at least four of the nine Justices. (In case you're wondering, which you probably aren't, "certiorari" is a Latin word meaning "to be more fully informed.") The Court “grants cert.” to only about one percent of the petitions.

Today the Supreme Court agreed to review one employment-law case and declined to review another. The High Court agreed to review the high-profile case involving the 2010 Arizona immigration law that has been copied by several other states. The Court will decide whether federal immigration law preempts a state immigration law that, among other things, makes it a crime for an undocumented alien to seek employment. However, the Supreme Court declined to review a Tenth Circuit Court of Appeals ruling that federal sector Age Discrmination in Employment Act (ADEA) claims are subject to the same "but for" causation standard as private sector ADEA claims. 

 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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