Old Workers Rule! (Age Discrimination Drools) - Guest Post

By Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Lawyers

Do you remember walking down the beach and seeing an older gentlemen wearing one of those delightfully tacky, yet funny, t-shirts stating, “Old Guys Rule!” You look at the shirt, then the man, and you smile thinking, “Yeah! That old guy does rule! More power to the old people!” Okay, maybe your thoughts weren't that dramatic, but you probably at least know someone over the age of 40 who still needs and/or wants to work, and who you are fond of. Or maybe, you are one of those 40+ workers declaring your own awesomeness. Since when did 40 become “old” anyway? Isn’t 40 the new 30? [Donna’s note: And here I thought 50 was the new 30.]

As a result of improving healthcare and standards of living, the number of people over the age of 60 is expected to increase to 2 billion by the year 2050. In the year 2000 there were only about 600 million people over the age of 60 worldwide. Our government has the responsibility of ensuring that older Americans are able to enjoy a decent standard of living, while contributing to society, as long as they want and are able to. The first step towards ensuring older Americans’ ability to make a living is to modify current laws that make it easy to discriminate against workers over the age of 40.

Currently, Federal Courts do not treat discrimination based on age the same as discrimination based on other categories of protected workers, such as race, sex, national origin and religion. An employee bringing suit based on one of these other protected categories only needs to demonstrate that the protected category was a contributing factor in the adverse employment decision. In such cases, the burden of proof then shifts back to the employer to show that it would have made the same decision regardless of the discrimination.

On the other hand, employees who claim that they were discriminated against due to their age must demonstrate to the Court that age was the “but for” cause of the adverse employment action.

This unequal treatment under discrimination laws appears to be changing. Just a few weeks ago, the Protecting Older Workers Against Discrimination Act (POWADA), a bi-partisan bill, was reintroduced to the House and Senate. This bill appears to have strong support from both parties and in both houses. Perhaps, this is because there are no Senators under the age of 40 and only a handful of Congressmen and Congresswomen under 40. Whatever the case may be, under POWADA, when an employee demonstrates discrimination was a “motivating factor” behind an adverse employment decision, the burden would then shift back to the employer to show that it would have made the same decision regardless of the unlawful discrimination.

POWADA would be a win for older employees who have been unfairly discriminated against in the workplace. All forms of workplace discrimination should be treated equally under the law, and POWADA would be a positive step towards making that a reality. If POWADA is enacted into law, the old guy on the beach will become that much cooler. He will now be able to keep his job, make more money, allowing him to buy a matching hat for his t-shirt! Perhaps it would read, “Old Guys Rule the Workplace.”

Beware the Dark Side: "But For" Doesn't Mean "Sole Cause" In Retaliation Claims

The management-side bar celebrated when the Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claimants must prove that retaliation was not just a motivating factor, but the "but for" cause of the retaliation. While I'm all for a good celebration, I wouldn't break out the champagne yet if I were on the dark side. (Heaven forbid. As Luke Skywalker said, "Never. I'll never turn to the Dark Side.")

For any type of discrimination other than age, and now retaliation, employees must prove that discrimination was either a substantial or a motivating factor in whatever action the employer took against them. This leads to a tortured analysis the courts use in "mixed motive" cases, where the employer had more than one reason for their actions. If the employee proves discrimination was a substantial or motivating factor, the employer can show (not actually prove, mind you) a legitimate reason for their actions. Then the employee must prove (not just show) that the reason given was pretextual (phony, made up, a load of cr**), and that the real reason was discrimination. Then the employer gets to come back and prove it would have made the same decision even if it hadn't discriminated. Whew! That's a whole lot of confusion to explain to a jury, and I'm over-simplifying it. No wonder employers like it. But having a confusing standard wasn't enough for the dark side.

Instead, they pushed the courts to establish an even tougher standard. What the Supreme Court came up with in Nassar was the "but for" standard. That is, but for the discrimination, the employer wouldn't have fired, demoted, refused to hire, etc. The majority opinion refers to "but for" as a tougher standard. But is it really? The dark side will try to claim that it means "sole cause." It doesn't.

Chief Justice Roberts (along with 3 of his conservative compatriates) complained in 2011 in CSX Transportation, Inc. v. McBride that the jury instruction the majority approved was the "but for" standard. He says, "The test the Court would substitute—whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply 'but for' causation.' He describes this scenario to demonstrate what he believes "but for" causation is:

For instance, if I drop a piano from a window and it falls on a person, there is no question that I was negligent and could have foreseen that the piano would hit some­one—as, in fact, it did. The problem for the Court’s test arises when the negligence does not directly produce the injury to the plaintiff: I drop a piano; it cracks the side­walk; during sidewalk repairs weeks later a man barreling down the sidewalk on a bicycle hits a cone that repairmen have placed around their worksite, and is injured. Was I negligent in dropping the piano because I could have foreseen 'a mishap and injury?' Yes. Did my  negligence cause “[the] mishap and injury” that resulted? It depends on what is meant by cause. My negligence was a “but for” cause of the injury: If I had not dropped the piano, the bicyclist would not have crashed. 

(citations omitted). He goes on to explain why he thinks the Court should impose more than "but for" causation. Yet Justice Roberts and the other three dissenters in CSX agreed with the majority in imposing "but for" causation in retaliation claims.

The instruction the Court in CSX approved was this: "Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part—no matter how small—in bringing about the injury." The majority commented that the cases CSX cited were proven by more than the "mere 'but for' causation." They rejected the concern that juries might utilize "far out 'but for' scenarios."

Does this "but for" standard sound like something that an employment plaintiff will have a hard time proving? Not to me. Will the four dissenters in CSX agree that this instruction fulfills their "but for" standard in retaliation cases? I'd certainly argue this is the instruction now applicable to retaliation cases.

You don't have to believe me on this. Courts interpreting "but for" in discrimination cases have said this about the standard:

• “[T]he plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'"
• Statutory language “merely imposes a ‘but for’ liability standard” requiring showing only that the protected classification was “a determinative, rather than the sole, decision making factor.” 
• “But-for” causation is defined as “a factor that made a difference in the outcome.” 

Let's look at how this should apply in a real retaliation case. Joe complains about being sexually harassed by a coworker. His supervisor wants to protect the coworker, so starts looking at Joe's work with a fine tooth comb. Joe is written up for picky things that his coworkers also do. He's fired for having 3 write-ups in a 90 day period. Sure, the picky violations are a "but for" cause. However, so is the retaliation. But for the supervisor's determination to retaliate, he wouldn't have started writing Joe up for these violations.

Here's another example. Jane complains about age discrimination. The company decides to get rid of her, so they audit all her recorded customer calls. They wouldn't normally have done the audit. They discover a call where she got terse with a customer and hung up. They fire her for violating standards of customer service. But for the age discrimination, she wouldn't have complained. But for the complaint, they wouldn't have done the audit. But for her violation, she wouldn't have been fired (or they'd have kept digging for something else). In my opinion, Jane wins on both the age and retaliation claims under the "but for" standard. She might not have won under the "mixed motive" standard. In this case, the Supreme Court may have done Jane a favor.

We'll have to see how this all plays out, but any defense lawyer who argues that "but for" means "sole cause" should be subject to sanctions for making a frivolous argument. I'd love to hear from any employee-side attorneys who manage to smack down such a silly argument. Does this mean that management-side won't try to push "sole cause?" No. Will the courts buy it? Stay tuned.I'll let you know if I hear of any cases on this one way or the other post-Nassar.

In the meantime, don't be afraid of the "but for" standard. Embrace it. As Yoda said, "Fear is the path to the Dark Side. Fear leads to anger, anger leads to hate, hate leads to suffering." Better yet, he said, "The fear of loss is a path to the Dark Side." So embrace the Force, and keep fighting the good fight.