Third Circuit: Allegation of "significantly younger" comparator is good enough to state an age discrimination claim under the ADEA

The Third Circuit recently published a precedential decision on a pretty interesting little pleading issue. In Martinez v. UPMC Susquehanna, the plaintiff alleged that he was replaced by people who were "significantly younger" than him. To use a comparator to establish an ADEA claim, the comparator must be "substantially younger." 

The pleading here bumps up against some general pleading requirements:

• First, when deciding whether a plaintiff has stated a claim, a court is only to consider factual allegations and not conclusory statements. "Significantly younger" could be viewed as conclusory. 

• 

  Not official use.

  Second, plaintiffs generally cannot survive a motion to dismiss just by "alleging the conclusion to an ultimate legal issue." And, whether someone is actually substantially younger is a conclusion of law. For example, see Narin v. Lower Merion School District, 206 F.3d 323, 333 n.9 (3d Cir. 2000) (7-year age difference between 56-year-old plaintiff and 49-year-old comparator was insufficient to “permit an inference of discrimination”); Gutknecht v. SmithKline Beecham Clinical Lab., 950 F. Supp. 667, 672 (E.D. Pa. 1996) ("Although no uniform rule exists, it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered sufficiently younger, and thus no prima facie case is made"). 

The Third Circuit, however, viewed the plaintiff's allegation that his comparators were "significantly younger" as a factual allegation and not a conclusion of law:

Martinez alleges a commonsense fact. He does not ask us to take as true that the hospital discriminated against him based on his age. He asks us only to accept that the men who replaced him were “significantly younger” than he was. That is a matter of common parlance and observation. People often look at someone’s appearance or experience and infer that person’s rough age. The inference is imperfect, but it is enough to get to discovery.

In my experience litigating these cases, this "commonsense" is indeed "imperfect." I once discovered that a proposed comparator was indeed younger than the plaintiff . . . by eight days. That said, it can sometimes be obvious to a plaintiff that their replacement is "significantly younger" - even if the exact age of the comparator is not known. The Third Circuit's decision here will let that issue play out in discovery. 

How much younger do comparators have to be in age discrimination cases?

In discrimination cases, plaintiffs often rely on comparators. If the plaintiff was treated worse than a similarly situated co-worker who differs from the plaintiff with regard to a protected characteristic, then that creates an inference of discrimination. 

Not official use.

Ordinarily, there's not much dispute about whether the comparator is a different race, or sex, or national origin. But, age discrimination poses a unique problem. No joke, I once had a plaintiff try to use someone 8 days younger than him. Was that really evidence that the employer discriminated based on age? Of course not! So, how much younger does the comparator have to be before the Court will infer age discrimination?

Here in the Third Circuit, including Pennsylvania, that cut-off appears to be in the 5-7 year range. See, Narin v. Lower Merion School District, 206 F.3d 323, 333 n.9 (3d Cir. 2000) (7-year age difference between 56-year-old plaintiff and 49-year-old comparator was insufficient to “permit an inference of discrimination”); Gutknecht v. SmithKline Beecham Clinical Lab., 950 F. Supp. 667, 672 (E.D. Pa. 1996) ("Although no uniform rule exists, it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered sufficiently younger, and thus no prima facie case is made").

SCOTUS: Federal employee ADEA claims and a newfangled "but for"-ish standard

Nice try SCOTUS! Thought you could slip one by me in the midst of a pandemic, did ya? Last week, the Supreme Court issued an opinion in Babb v. Wilkie.

Of course, we all know that after Gross v. FBL, ADEA claims require a showing that age was the "but for" cause of the adverse employment action . . . in the private sector. But, what about the separate federal sector ADEA provisions?

The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Well, that seems uhhh, unnecessarily convoluted? What are the "other remedies" that require something less than "but for" causation? The Court vaguely alludes to "injunctive or other forward-looking relief" - in the context of age being the but for cause of disparate treatment in an employment decision, even if it was not the but for cause of the decision itself.

This will probably help some claims crawl over the dismissal and summary judgment hurdles - but will have limited impact because it is limited to federal employee ADEA claims, and primarily just opens the door to some equitable remedies without a "but for" showing.
 

SCOTUS adds two new #emplaw cases to docket

The Supreme Court granted certiorari on Friday in two new employment law cases. Of course, we all know what the big one will be next year. But, for the die hards, here are the two new, not-quite-as-hot, topics:

ADEA

First up, Babb v. Wilkie, in which SCOTUSblog describes the issue as:

Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

Shades of Gross v. FBL in this one (holding that the private sector provisions require "but for" causation).

ERISA

Second up, and again relying on SCOTUSblog for the issues, is Thole v. U.S. Bank, N.A.:

(1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; 

(2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019; and 

(3) whether petitioners have demonstrated Article III standing.

Wow, ERISA and standing in the same case? Will anyone be able to stay awake past the first two pages of the opinion? We'll find out next term.

7th Cir: ADEA disparate impact only applies to employees, not applicants

Not official use. 

In Kleber v. CareFusion Corp., the Seventh Circuit (en banc) held that "that Congress, while protecting employees from disparate impact age discrimination [under the ADEA], did not extend that same protection to outside job applicants." Woah, that's big, right? How did they get there?

The Court focused on the statutory text. The disparate impact provision of the ADEA makes specific reference to protecting one's "status as an employee." Welp, an applicant is not an "employee," right? The Court also contrasted the disparate impact provision with the disparate treatment provision, which makes it unlawful for an employer "to fail or refuse to hire . . . any individual . . . because of such individual's age."

This is a controversial ruling, and the Court split with four judges dissenting. I would not be surprised to see a circuit split on this issue and/or Supreme Court review.

Ninth Circuit's Revenge: SCOTUS on ADEA definition of "employer"

The 6th, 7th, 8th, and 10th Circuits held one way . . . and then the 9th Circuit held another way, creating a circuit split. The Supreme Court granted certiorari, which means the 9th Circuit will surely get reversed right?

That would be the conventional wisdom. But, the 9th Circuit had the statutory text on its side.

The Supreme Court issued its first opinion of the term yesterday in Mount Lemon Fire Dist. v. Guido. The ADEA generally only covers employers with 20 or more employees, but does that 20-employee cutoff apply to state entities (including political subdivisions)? Let's go to the text of the ADEA:

The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .

In a unanimous opinion (minus Justice Kavanaugh, who was not yet on the Court when the case was argued), Justice Ginsburg focused on the text. In particular, the words, "also means." This suggests that the statute is creating additional categories aside from the 20-employee prelude. Thus, the Court held "state and local governments are “employer[s]” covered by the ADEA regardless of their size."

SCOTUS kicks off new season with ADEA case

On Monday, the Supreme Court kicked off its new season with only 8 Justices (with a 9th possibly, maybe, on the way). The Court heard oral arguments in Mt. Lemmon Fire Dist. v. Guido (transcript here). The case presents an interesting ADEA issue.

Generally, the ADEA covers employers with 20 or more employees. Does that 20-employee minimum apply to states (and their political subdivisions, agencies, and instrumentalities)? The statutory text:

The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

29 U.S.C. § 630(b).

Most circuit courts that have examined this issue have held that yes, the 20-employee minimum applies. So, that's where my money is on this case - but we'll see.

Mt. Lemmon Fire Dist. v. Guido SCOTUSblog page.

Circuit split: 3d Cir. recognizes ADEA subgroup disparate impact claims

The ADEA protects employees over the age of 40 from age discrimination. In Karlo v. Pittsburgh Glass Works, LLC, the Third Circuit analyzed whether a subgroup of employees older than 40 can bring a disparate impact claim:

Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old—that is, all employees covered by the ADEA. In this case, plaintiffs claim to have identified a policy that disproportionately impacted a subgroup of that population: employees older than fifty.

Not official use.

If you counted the employees older than 40 but younger than 50, it "washed out the statistical evidence of a disparity."

The Court provided in depth analysis of the issue, but one of the primary factors was the specific protection provided by the ADEA. "[T]he ADEA proscribes age discrimination, not forty-and-over discrimination." The Court relied heavily on the Supreme Court's determination that a 56 year old employee could file a discrimination claim if he was fired and replaced by a significantly younger worker... even if that comparitor was over 40. See, O'Connor v. Consolidated Coin Caterers Corp.

Ultimately, the Third Circuit concluded that plaintiffs may bring disparate impact claims where a policy disproportionately impacts a subgroup of employees older than 40 (e.g. employees odler than 50), even if the statistical evidence would not support a disparate impact theory when applied to the entire class of employees over 40. This creates a circuit split, as multiple other circuit courts have reached the opposite conclusion. Circuit splits often draw SCOTUS attention - we'll see if this is the case that gets the issue to SCOTUS.

Will SCOTUS Take Another Crack at ADEA Preclusion of s1983 Claim?

The SCOTUSblog Petition of the Day is Hildebrand v. Allegheny County out of my beloved home circuit (aka the 3d Cir.). The issue presented is:

Does the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, preclude those employees from bringing a section 1983 action to redress age discrimination that violates the Equal Protection Clause?

If that sounds familiar, it's because that is essentially the same issue presented in Madigan v. Levin. The Supreme Court granted certiorari in that case, the parties briefed it, and the Court even heard oral arguments . . . but, wah wah . . . the Court dismissed Madigan v. Levin as improvidently granted.

The Court obviously has an interest in this issue, so the prospects for a cert grant in Hildebrand seem pretty strong. The Court will consider the case at its February 20, 2015 conference.

Surprise! Justice Alito issues one-man employment law opinion

Well, I wasn't expecting a SCOTUS opinion this morning. But, surprise! - we got one. First, some background....

Approximately one year ago, the Sixth Circuit held that an employee suffered an adverse employment action in Deleon v. Kalamazoo Cnty. Rd. Comm'n. The case was a mix of Equal Protection Clause, Title VII, and ADEA claims. What was the adverse employment action? Well, the employer involuntarily transferred the employee to . . . (here's where things get weird) . . . a position that he had previously applied for just a few months earlier, which was a lateral transfer and the employee himself viewed as "possessing better potential for career advancement."

The lone dissenting judge had a different (and colorful) perspective:

Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

We'll put you down as a "strong disagree" your honor. Maybe Ohio employment lawyer, Jon Hyman, saw it differently . . . . nope: "There is so much wrong with this opinion that I don’t know where to start."

That brings us to today. The Supreme Court (aka SCOTUS) issued an order denying certiorari in a bajillion cases (rough estimate). But alllll the way down at the bottom we have a surprise opinion from Justice Alito in Deleon:

JUSTICE ALITO, dissenting from denial of certiorari. 

Certiorari is appropriate when “a United States court of appeals . . . has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power.” Supreme Court Rule 10(a). The decision of the Sixth Circuit in this case—holding that respondent suffered an adverse employment action when his employer transferred him to a position for which he had applied—qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is warranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undisturbed, will stand as a binding precedent within the Sixth Circuit. I would grant review and correct the Sixth Circuit’s obvious error . . . . 

The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based. I would grant the petition for certiorari and summarily reverse.

Alas, Justice Alito was the only one.

SCOTUS Dismisses Constitutional Age Discrimination Case

Oh, Madigan v. Levin, we hardly knew ye. I blogged about this case when cert was granted, it was just my Case of the Week two weeks ago, and I briefly addressed it again in my annual SCOTUS preview. The Court was supposed to address whether a public employee had to comply with the administrative exhaustion requirements of the ADEA, or if the employee could instead just file an age discrimination claim under the Equal Protection Clause of the Constitution and skip that EEOC (or other agency) stuff.

Today, the Court issued this order: "The writ of certiorari is dismissed as improvidently granted." Or "DIG'd" as the kids say. Hardly a surprise, SCOTUSblog suggested this might be the outcome following oral arguments. Happy trails Madigan v. Levin.

SCOTUS 2013-14 Employment Law Preview

Slim employment law pickings at the Supreme Court this term (at least among cases granted thus far). As a reminder, I broke labor law into a separate preview this year. Let's check out the docket:

Age Discrimination Claims Under the Constitution
In Madigan v. Levin, the Court will hopefully decide:

Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

In other words, can public employees skip all that administrative stuff under the ADEA, like filing a charge with the EEOC, and just go straight to court with a claim under the Equal Protection Clause? And I say "hopefully" the Court will decide the issue because there are significant procedural hurdles, and early reports from oral arguments suggest the case might get DIG'd (or otherwise decided without resolving the big question).

ERISA Statute of Limitations
In Heimeshoff v. Hartford Life and Accident Ins. Co., the Supreme Court granted certiorari on one specific question: "When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?" Oral argument is set for October 15, 2013.

SOx Retaliation
In Lawson v. FMR LLC, the Supreme Court will likely determine:

Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A (of the Sarbanes-Oxley Act)?

Argument on November 12, 2013.

Employment Law-ish
And then there are the cases that are kinda sorta employment law-ish. Like, U.S. v. Quality Stores, Inc. (Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 3101 et seq.) and an obligatory arbitration case, BG Group PLC v. Republic of Argentina (In disputes involving a multi-staged dispute resolution process, does a court or instead the arbitrator determine whether a precondition to arbitration has been satisfied?).

So, to recap - an age discrimination case that will only impact public employees that probably won't even be resolved by the Court; an ERISA statute of limitations case; a SOx case applicable only to (sub)contractors of certain public companies; a FICA case; and an arbitration question. I'm having trouble getting pumped up for this term. There's some chance SCOTUS will grant cert on an interesting pregnancy accommodation issue though so cross your fingers!

SCOTUS Returns on Monday with Age Discrimination Case - COTW #163

It takes more than a federal government shutdown to stop the Supreme Court! They granted certiorari in eight cases on Monday, including two labor and employment law issues. I may jump on them next week - in the meantime check out Ross Runkel's blog for details on the issues in the two cases:

1. Constitutionality of compelled payments to labor union; and
2. FICA Tax on Severance Payments to Involuntarily Terminated Employees.

The Court has announced that it will remain open and continue to hear oral arguments until October 11 (at which point they'll reassess the situation if need be).

The first day of oral arguments features an interesting confluence of age discrimination statutory law and constitutional law. When plaintiffs file age discrimination claims under the ADEA they must "exhaust their administrative remedies" - i.e. they must go through the EEOC process before running to court.

However, public employees can file suit under the United States Constitution (and a statute that allows lawsuits for infringement of constitutional rights, 42 USC s1983). Specifically, the Fourteenth Amendment's Equal Protection Clause prohibits certain types of discrimination. Can 14th Am plaintiffs just run straight to court without jumping through those administrative hurdles?

SCOTUS will hopefully answer that question (there's another qualified immunity issue at play here too). The case is Madigan v. Levin, you can check out the SCOTUSblog page here, and my initial post when the Supreme Court granted cert here.

SCOTUS Grants Cert. in Constitutional Age Discrimination Case

This morning, the Supreme Court agreed to hear Madigan v. Levin (SCOTUSBlog entry here). Per the Petition for Certiorari, the question presented is:

[Whether] state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

In other words, can a state or local employee skip all of that EEOC stuff (required by the ADEA) and just go straight to court with his or her age discrimination claim (under the Constitution)?

The Constitution includes the Equal Protection clause, which (via § 1983) could allow an employee to go straight to court with a discrimination claim against a state actor. However, Congress has set forth a thorough framework to resolve age discrimination claims under the ADEA. That framework includes administrative requirements, like filing an EEOC charge. The employer argues that the ADEA displaces the constitutional claim.

There's a circuit split on the issue (and "muddled" case law in my home 3rd Circuit - see p. 11 of Petition), so hopefully the Court will resolve the issue. There's also a side issue about whether the defendant in this case has qualified immunity.

New 3d Cir. Precedential Discrimination Opinion - COTW #132

The Third Circuit recently unleashed a monster 38-page precedential discrimination opinion in Burton v. Teleflex, Inc. It would be tough to breakdown all of the issues in a quick blog post, but I did want to point out the Court's analysis of the resignation vs. termination determination.

The evidence seems pretty clear to me . . . the employee had an exchange with her supervisor in which she repeatedly asked him if he wanted her to resign (according to testimony from both parties). He said he did not, but the employee then walked away and the supervisor understood her disengagement from the conversation to be a resignation (while admitting that the employee never expressly stated that she resigned). Right after the conversation, the employee told two co-workers that she had resigned, and the co-workers told the supervisor. The employee then missed the next two days of work and then left for a previously scheduled one-week vacation. When she got back from vacation she received a letter accepting her resignation, which she did not contest.

Pretty obvious what happened here, right? The employee resigned! The district court granted summary judgment for the employer on her discrimination claims. Not so fast though! The Third Circuit finds a "genuine dispute of material fact" (i.e. a summary judgment killer) based on the evidence that:

• The employee denies that she ever told anyone she was resigning;
• There was no resignation letter;
• The supervisor admits that the employee never expressly told him that she was resigning (and there was no evidence that she ever told anyone above her in the chain of command that she was resigning);
• Nobody from the employer ever confirmed with the employee that she had resigned; and
• The employee's husband testified that she never mentioned resigning or getting fired after the conversation with her supervisor, and even did some work after that.

There were a few other facts sprinkled in the opinion as well. Frankly, if I'm on a jury here, I still think she resigned. But that's not the role of the trial court. The trial court does not resolve disputes of fact, so the Third Circuit reverses and the employee's claim lives to fight another day.

There are several other issues in the opinion, and I recommend reading the whole thing if you're in the Third Circuit (including Pennsylvania).

Sleeping at Work Probably Won't Help Plaintiff's Discrimination Claim

Last week, the Third Circuit released its opinion in Vasbinder v. Dept. of Veterans Affairs (opinion here).The plaintiff was a boiler plant operator,

responsible for continuously monitoring the plant’s equipment to prevent malfunctions that could result in explosions, property damage, interruptions of medical services, injuries, or fatalities.

Surely he took those responsibilities seriously right (hint: if his case is on this blog . . . well, I don't want to give it away just yet)?

Plaintiff alleges that he was demoted and denied an open position due to age discrimination and retaliation. But maybe the employer had a nondiscriminatory reason for these actions . . . like, maybe one day the plaintiff was the only one working at the plant and his supervisor:

found [Plaintiff] sleeping on the floor of the office, with a pillow, one or two blankets, and an alarm clock.

Yeah, that's not gonna help the ole' discrimination claim. The plaintiff claims he was just "relaxing." The Court checked the record for evidence of discrimination and pretty much came up empty. The Third Circuit affirmed summary judgment in favor of the plaintiff DEFENDANT (sorry, flipped the parties originally).

HT: Eric Meyer - His post on this case includes analogies to Homer Simpson and George Costanza, and includes music like Daydream Believer and Beds are Burning. Now that I think about it, my measly post pales in comparison . . . .

Image: Third Circuit seal is a public domain work of the federal government. Not official use.

EEOC Issues Final Rule on "Reasonable Factors Other than Age" Defense

The EEOC issued its final rule on the "Reasonable Factors Other than Age" defense. The defense is used in ADEA (age discrimination) cases where a facially neutral policy or practice has a significant disparate impact on workers over 40 on the basis of older age.

Some of the highlights:

[A]n employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.

The EEOC also provided some considerations that are relevant, though no single consideration is determinative:

(i) The extent to which the factor is related to the employer’s stated business purpose;

(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;

(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;

(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and

(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

You can also check out the EEOC's press release or their Questions and Answers on the final rule.

Image: EEOC logo used in commentary on EEOC. Not official use.

"Grandma" it's a "Lateral Move" (and an ADEA Claim!) - COTW #75

Grandma, don't forget to file your ADEA claim! Two of the key components of a discrimination claim are 1. establishing discriminatory motive; and 2. showing an adverse employment action. The employment law Case of the Week is Norris v. Millbrook, 2011 WL 5553082 (M.D. Ala. Nov. 15, 2011). It provides a succinct analysis of lateral moves as adverse employment actions, but first the discriminatory intent . . .

The plaintiff was able to establish her employer's discriminatory intent based in part on ageist comments from her boss. He repeatedly called her "grandma" in a derogatory fashion. He allegedly followed up by telling the plaintiff she needed Gingko Biloba (believed to be a memory enhancer). So, when the boss transferred her to a new position, age might have had something to do with it.

The employer argued that the transfer was a "lateral move" and therefore not an adverse action (or demotion). After all, the plaintiff's remuneration was not changed. But the Court noted:

Although Plaintiff does not dispute that there was no abatement in her pay or her benefits, she testified that her responsibilities "were reduced to almost zero" and that she was not supplied "any [necessary] equipment" and that she was a departmental outcast after the move.

The plaintiff was also, "moved to an unoccupied small desk in the corner of the records office that did not have a telephone or a computer."

That was enough to get "Grandma" past the defendant's summary judgment motion. "Lateral moves" can be tricky, and results may vary from jurisdiction to jurisdiction.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Ranking Workplace Porn Emails - COTW #69

In Hodczak v. Latrobe Specialty Steel Company, the Third Circuit analyzed an age discrimination claim brought by employees who were fired for exchanging "sexually explicit" emails at work. Third Circuit, discrimination, and porn? You know that's gonna be a Case of the Week! The employees claimed they were terminated while younger employees, who also had some workplace porn, were not terminated.

One interesting aspect of the case is that it sheds light on how the employer differentiated the levels of workplace porn activity. For example:

In deciding the appropriate level of discipline for each employee, LSS considered the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company, and whether they were sent to customers or vendors.

Sounds reasonable. One sidenote, the employer looked at the "nature" of the emails. I always thought cases like this should include the content in question... not because I want dirty pictures (I'm guessing there are better places to find porn on the Internet than Westlaw), but so that we can get a feel for exactly what these guys were sharing. But I digress...

The Court also did some ranking of the emails. As part of a discrimination claim, it helps to show that "similarly situated" individuals were treated differently. The Court found:

[T]he persons identified by Appellants are not similarly situated. Carl Dorsch is not similarly situated to Appellants because, although he accessed pornographic websites on his work computer, he was a non-supervisory employee and he did not send the content to anyone else. Likewise, Robert Smith is not similarly situated to Appellants because there is no evidence that Smith actually sent sexually explicit emails . . . . Conrad is not similarly situated to Appellants because he sent only one email and did so from his personal computer. In contrast, Appellants exchanged sexually explicit emails on nearly a daily basis.

Good to know. I think we have some solid takeaways regarding dirty emails in the workplace here:

• It's worse when supervisors do it;
• Using workplace computers is worse than using personal computers;
• Sharing is worse than viewing;
• More is worse than less;
• The "nature" of the emails matters; and
• Sharing externally (especially with customers and vendors) may be worse than sharing internally (That 's the employers view, but I'm not sure I agree... internally could have a greater chance of spawning sexual harassment claims).

HT: Molly DiBianca - Employees Fired for Pornographic Emails Lose Age Discrimination Case.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

5th Circuit Recognizes Age-Based Hostile Work Environment - COTW #58

Hostile work environment claims are nothing new. But, what a lot of people don't know is that they are actually based on discrimination statutes. Your work environment may be hostile, but if the hostility is not based on a protected class then you probably don't have a claim.

Hostile work environment claims generally arise from Title VII (protecting sex, race, religion, color, national origin). However, age is a protected class under a separate statute, the ADEA. Whether the ADEA creates a cause of action for hostile work environment is an open question in many jurisdictions - but, after the latest Case of the Week, not the Fifth Circuit!

In Dediol v. Best Chevrolet, Inc., the Fifth Circuit held:

[T]he ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace . . . . [T]he broad application of the hostile-environment doctrine in the Title VII context; the general similarity of purpose shared by Title VII and the ADEA; and the fact that the Title VII rationale for the doctrine is of equal force, all counsel" the result that a claim for hostile work environment based on age is recognized under Title VII.

(quoting Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996)). A little sidenote here, in Gross v. FBL, the Supreme Court recently rejected the idea that Title VII and the ADEA should be interpreted identically. That said, they are similar so the Fifth (via the Sixth) Circuit's analysis here seems sound.

So, what kinds of facts might support such a claim? Well, in Dediol the employee requested time off to volunteer at a church event. His supervisor allegedly replied, "You old mother******, you are not going over there tomorrow" and "if you go over there, [I’ll] fire your f*****g ass." And then, the supervisor "never again referred to him by his given name, instead calling him names like 'old mother******,' 'old man,' and 'pops.'" Note to employers, profanity makes everything sound worse (compare "old" to "old mother******").

What about here in Pennsylvania and the Third Circuit? Ahhh, a tease for a future blog entry (check back next week).

A ton of blogs have covered this case already, but here are some good ones: Eric Meyer's This old mother****** may just have an age discrimination claim; and Paul Mollica's case summary in Outen and Golden Employment Law Blog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.