Delaware Employment Law Blog

The Supreme Court issued its opinion in Gross v. FBL Financial Services last week, holding that a plaintiff bringing an age-discrimination claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Title VII permits plaintiffs to prove that the employer had several motive.  So long as the plaintiff shows that at least one of the motives was discriminatory, he has met his burden to show cause.  The Supreme Court's ruing in Gross, on the other hand, makes clear that the ADEA does not provide for a mixed-motive analysis.

The decision will have positive implications for employers who find themselves defending against an age-discrimination claim.

Age-discrimination claims are on the rise.  The number of age-based charges of discrimination filed with the EEOC increased by 29% in 2008, according to an article in the Wall Street Journal, More Workers Cite Age Bias After Layoffs. The rise is larger than the overall increase in charge filings, which the EEOC reported as 15% over 2007.  This news won't come as much of a surprise to most employment law attorneys, though.  We've seen a steep increase in charge filings, on the state and federal levels, since the summer of 2008, with a seemingly record-high numbers of charge filed in the Delaware Department of Labor during the months of September and October.  But why have age claims, in particular, been the type subject to the sharpest increase?

For one, there are more older workers in the workforce today than ever before.  We're living longer.  And we Traditionalists and Silents have resisted retirement, remaining active members of the workforce.  Statistically, if there are more people over 40, then it follows that there will be more age claims. 

Layoffs are another contributing factor. When layoffs happen, employees with the highest salaries are common targets.  And salary level is often commensurate with years of service.  And, as you may have guessed by now, years of service with a particular employer is often commensurate with years of total employment.

So if these factors are by-products of modern reality, can there really be more age bias in the workplace?  As this unprecedented number of claimants take their claims through the charge process and are released from the administrative process, it will only be a matter of time until we know whether the same staggering increases will be seen in the courts around the country. 

Delaware Employers,

Don't miss an opportunity to learn up-to-the-minute statistics on the current status of charges in the State of Delaware.  We're honored to have Julie Klein Cutler, Administrator for the Delaware Department of Labor's Office of Anti-Discrimination as a Keynote Speaker at Young Conaway's 2009 Annual Employment Law Seminar.  Registration for this year's employment law seminar is open for only one more week.  If you haven't signed up already, you can register now to participate in this must-attend educational event.  We hope to see you there!

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann's managers used profanity and called him a "dinosaur," resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

This story comes from the Zanesville Times Recorder's article, "Complaint: AG's office discriminated and harassed."

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG's departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG's Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to "discriminate" against him if the AG believed that Kessler's political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler's claim for political association (a constitutional claim brought pursuant to the First Amendment's Right to Freedom of Association), is tossed by the EEOC or the courts, he'll have the age claim to fall back on.  However, given his actual age (49), the "back-up" argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the "dinosaur comment" might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

"The analysis is not that simple," Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC's argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider "the terminated employee's 'fungibility' or usefulness to the employer in comparison to other employees."

Here, the six younger engineers that EEOC cited as "similarly situated" to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it "fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications."

This case demonstrates the Court's continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng'g Co., can be found at Magistrate Judge Thygne's website.

In response to Smith v. City of Jackson, the EEOC has issued proposed regs addressing disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).

It has been three years since the Supreme Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In Smith, the Court held that the ADEA authorizes claims of disparate-impact discrimination. The EEOC had taken this position long before the Court's decision.

The Court also held that the appropriate standard for determining the lawfulness of a contested practice is whether the practice can be justified by a "reasonable factor other than age" (the "RFOA test"). This was a departure from the more stringent, "business-necessity" requirement maintained by the EEOC. The new proposed regulation would reflect the City of Jackson decision. The proposed regulation also clarifies that the employer has the burden to show that a RFOA actually exists.

The text of the Notice of Proposed Rulemaking can be found in the March 31, 2008, edition of the Federal Register.

It's 2008, do you know where your employees blog? Employers who fail to stay current with the popularity of blogging or who do not have a solid blogging policy in their Employee Handbook put themselves at a great disadvantage. Read on for some key points on the "whys" and the "hows" of a valid and comprehensive blogging policy.

Today’s Wall Street Journal features an article on blogger Heather Armstrong. Heather is most famous for being fired for writing about her co-workers on her blog, www.dooce.com. In fact, a blogger is “dooced” when he or she is terminated for blog comments.

Today, Heather is a full-time blogger writing mostly about her family life. Her blog is incredibly popular, receiving over a thousand hits each month. Her husband even quit his job to work on selling advertising for the blog.

The article causes one to think about just what risks employee run blogs pose for the workplace and how problems can be avoided.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that's under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, co-workers, customers, or competitors.

Harassing or otherwise offensive content. Imagine, for example, a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual's situation in accordance with federal law. A blogger complains that that "slacker" is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person's possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn't go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

It's important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they're hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:
1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don't represent the views of their employer.

2. In blogging, as in any other communication, employees must respect the company's confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they're required to sign confidentiality agreements, of their commitments under those agreements.

3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.

4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.

5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.

6. Employees are responsible for ensuring that their blogging activity doesn't interfere with their work commitments, and they should be familiar with the company's other policies regarding Internet use, which also apply to blogs.
The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process. Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.