Tuesday, August 25, 2009

Gross "But For" Standard Applied to Juror Act

"[E]veryone knows that a juror's job is protected during her absence, right?"
If you didn't know (and are therefore, apparently nobody), the statute is 28 U.S.C.A. § 1875 which reads in part:
"No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee's jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States."
The opening line of this post comes from the D.C. District Court in Williams v. D.C., No. 07-505 (RMC)(Aug. 21, 2009).

Dr. LilliAnn Williams-Jackson, a guidance counselor at a D.C. public elementary school, sued the city, alleging she lost her position (she was "excessed") for missing work due to jury duty. Dr. Jackson was away from work for four months for a capital case.

The Court describes the case as a "close case of mixed motives" which means that jury duty may have been just one of multiple reasons Dr. Jackson lost her job (here, the school demonstrated a need to reduce its staff). In fact, the Court had "no doubt" that Dr. Jackson's jury duty was a motivating factor. The Court concluded, however, that "Dr. Jackson has not carried her burden to prove that her jury service 'was the but-for cause of the challenged adverse employment action.'"

Wait a second... where does that language come from? Yup, you guessed it (or read the title of this post): Gross v. FBL! See Lawffice Space summary of Gross. That case was significant in that it held mixed motive burden-shifting was never appropriate in Age Discrimination (ADEA) claims. Instead, plaintiffs must establish that age was the 'but-for' cause of an adverse employment action.

I, for one, assumed the holding in Gross would be limited to ADEA cases as the holding is quite a departure from the standards applied under the other discrimination statutes (ADA, Title VII). Apparently, at least in D.C. for the time being, it will be the standard in jury duty retaliation cases as well. Actually, based on the Court's reasoning, it will be the standard under any similar statute that doesn't expressly provide for "motivating factor" liability. This latest case just confirms the huge impact of Gross on employment law.

Note: Business Insurance Magazine reports that Age bias charges surge as firms shed workers. The article has some coverage of Gross, and more importantly, a quote from ME!