Will Congress Fix Stupid Age Discrimination Loophole?

          In most discrimination cases, you only have to prove discrimination was one of the motives your employer had in taking action against you. For instance, if you announce you’re pregnant and are suddenly included in a mass layoff where others with less experience and less stellar reviews aren’t laid off, you have a pregnancy discrimination case. Sure, the need to cut back and restructure was one reason for the company’s decision, but your pregnancy was why they chose you.

It used to be that way in age discrimination cases too, until the Supreme Court in Gross v. FBL Financial 19 Services, Inc. decided the Age Discrimination in Employment Act required age be the only reason for the employer’s decision. I won’t go into the legalese on why they came to this conclusion (you can read more about it in the press release for the bill here), but the effects are devastating to age discrimination cases. 

Theoretically, if you’re laid off right after your 50^th birthday, the company could say one reason for picking you was they needed to restructure and they’d win, even if you could prove you were selected due to your age and that younger, less qualified employees were kept. Or, if you thought you were targeted due to both your age and national origin, they might win the age case just because you admit age wasn’t the only reason for their actions.

I’m not saying these arguments would be definite winners, because it’s a bit more complicated, but you can see the kind of ridiculous decisions that can result in age discrimination cases. Not only age discrimination cases are affected; lower courts have applied this same tortured reasoning to disability discrimination cases too.

Fortunately, a bipartisan effort is afoot to fix this stupid judicially-created loophole. The “Protecting Older Workers Against Discrimination Act”  S. 2189 has been introduced to make sure age and disability discrimination cases are treated the same as other types of discrimination, and are not subject to a heightened burden of proof. There were previous attempts since the Supremes made their ruling in 2009 to fix this problem that failed, so it’s not a done deal.

If you think fixing this loophole is a good idea, tell your member of Congress today.

Orange-Americans Unite: Stand Up For Yourselves!

           Did you hear the one about the 14 employees who were fired for wearing orange shirts? If you didn’t, you don’t live in the UK or Ghana or anywhere in the U.S., because the story made the international news. I think the story hit a chord with people everywhere because it was just so outrageous. You come into work one day, the boss is in a bad mood and fires you because she didn’t like your shirt that day.

            Management said they believed the shirts were a protest over working conditions, so they fired the employees involved. Some of the employees were quoted saying they didn’t intend to protest.

            What I thought was really interesting were the lawyers quoted who said, because Florida is an at-will state,  the employees could be fired for any reason. That's true some of the time. As I say in my upcoming book, employers can fire you because they didn't like your shoes that day. However I don’t agree with the assessment that these employees have no legal protection. Employees do have rights, even when they wear orange.

            I should confess at this point that I represent a group of the Orange-American employees who were fired. I won't go into all the underlying facts at this point. Let’s just say there’s more to the story.

            What I will do is discuss generally some circumstances where even Florida employees can’t be fired because their boss didn’t like their shirts:

            Religion: If the clothing has religious significance, the employer can’t fire employees for wearing it unless it can show serious concerns such as safety or security. Orange is a key color for the Protestant religion, so if the color was worn for religious reasons, firing because of wearing the shirts would be religious discrimination.

            Disability: If the clothing or color was worn due to a disability, such as a spine-adjusting device, then the employer would have to accommodate the disability unless it could show an undue hardship.

            Discrimination: If not all employees were fired for wearing orange, and the employees not fired were of a different race, age, sex, religion, national origin, etc. than the people fired, it could be discrimination.

            Concerted activity: The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

            There have been lots of cases where firing employees because management didn’t like their shirt were found to be unlawful: where AT&T workers wore shirts that said “Inmate #” on the front and on the back said “Prisoner of AT$T”; where employees wore shirts protesting the use of retirees to bust unions and some employees wore shirts saying, “Union ‘til I retire, then scab in!” and “When I retire I will not scab. I will go fishing”; where employees wore shirts with the employer’s logo, cracked, saying, “I survived the Midstate Strike of 1971-1975-1979”; and many more. In each case, the employees’ shirts were concerted activity protected under the NLRA.

            I won’t comment on which of these circumstances apply to my Orange-American clients’ cases – at least, not yet. But I will say this: it could happen to you. We’re all Orange-Americans. Every American who works for a living and can be fired, from the janitor to the CEO. Every American who thinks our jobs shouldn’t be yanked away without good reason. Every American who wants to complain about working conditions but is afraid. Every American who can lose not only their jobs, but their health insurance, for any reason or no reason at all. Every American who can be fired for wearing a color their boss doesn’t like, and can then be told they aren’t allowed to work in their chosen profession for a year or two.

            American workers do have rights, even in Florida; you just don’t have many. But you do have some rights, if only you know how to exercise them. You also have the right to vote, and to petition your representatives to change the law. In this economy, shouldn’t an employer have more reason than an intense dislike of the color orange to fire you?

            Orange-Americans unite: stand up for yourselves!

Are Federal Judges Hostile To Employment Plaintiffs? Report Says Yes

The National Employment Lawyers Association (NELA), which is the employee-side lawyers’ organization, just released a study called Judicial Hostility to Workers’ Rights: The Case for Professional Diversity on the Federal Bench. The statistics confirm what every employment law practitioner knows already: federal courts are mostly a terrible place for employees:

• From 1979-2006, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent).

• For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent).

• Employees succeeded on appeal only 9 percent of the time, while employers won 41 percent of appeals.

Judicial Hostility, p. 4.

The report points to the lack of federal judges who, as lawyers, actually represented, you know, people. I don’t mean corporations, which are now considered by the same federal bench to be people. I mean living, breathing human beings.

Employees face all kinds of judge-created obstacles. The report cites a few (my colleagues and I could probably name a dozen more):

• “Stray Remarks” – Allows judges to disregard discriminatory statements made by supervisors or other employees as merely “stray remarks,” and therefore not evidence of discrimination

• “Business Judgment” – Permits judges to defer to an employer’s “business judgment” instead of carefully examining whether an asserted justification for an adverse employment action was pretext for unlawful discrimination. Some courts have gone so far as to accept the defendant’s asserted reasons for the adverse employment action being challenged, even when the employer’s explanation is harsh or unreasonable.

• “Self-Serving Witness” – Enables judges to presume the credibility of testimony from defense witnesses with a vested interest in helping employers avoid liability, while categorizing assertions by or on behalf of plaintiff-employees as purely “self-serving.”

Judicial Hostility, p. 5.

The report cites to one other factor peculiar to federal courts: summary judgment. The fact is that summary judgment standards in federal court result in very few employment cases actually making it to trial.

• Between 1979 and 2006, employees in discrimination cases won only 4 percent of pretrial adjudications – the bulk of which can safely be assumed to have been on defendants’ motions for summary judgment.

Judicial Hostility, p. 8.

The report recommends that the President appoint judges from diverse professional backgrounds. The lack of judges who have worked for non-profit organizations that assist the poor and judges who have represented plaintiffs in employment and civil rights cases certainly skews the bench to the employer side.

I have another suggestion. Congress needs to step in. When the bench creates obstacles, Congress can lift them. They’ve done it with the Lilly Ledbetter Fair Pay Act, the ADA Amendments Act, and the VOW to Hire Heroes Act. They can fix some more of these problems by making the standards for proving and winning discrimination cases clear; by laying out the burden of proof for both plaintiffs and defendants so it’s not open to hostile interpretation; and by eliminating the judge-created doctrines that make employment law cases ridiculously hard to win.

Do you want change? Contact your member of Congress. Send them this report. Tell them that it's their job to make sure hard-working Americans don't get short-changed in federal court.