Page 74 - MetalForming October 2009

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelaw-
offices.com
Age Discrimination Act (ADEA) Claims Not Allowed to Masquerade as Title VII EEO Shifting Burden of Proof Cases
When a worker under Federal EEO Title VII law alleges that he has suf- fered an adverse employment action because of both permissible and imper- missible considerations, i.e., a “mixed motives case,” federal courts analyze such a case under a three-phase shifting burden of proof. First, the plaintiff must prove that the law applies and that a dis- criminatory act took place. Secondly, such proof then shifts the burden to the employer to articulate a nondis- criminatory reason for taking the adverse personnel action. Thirdly, the burden of proof (and final persuasion) shifts back to the suing employee to prove that the employer’s articulated reason was a pretext. It is a confusing burden of proof process, based in part on the Title VII EEO Law section that specifically authorizes mixed motive cases: where an improper considera- tion was “a motivating factor” for the adverse action—42 U.S.C. Section 2000e-2(m) and 2000e-d(g)(2)(B).
By sharp contrast, the federal ADEA age discrimination law does not provide nor allow a plaintiff-worker to establish discrimination by showing that age was simply one motivating factor. The ADEA language is different; it requires (and makes it unlawful) for an employ- er to take adverse workplace action against an employee “because of such individual’s age.”
As a result of that clear difference in statutory language, the U.S. Supreme Court, on June 18, 2009, imposed a nonshifting burden of proof, which stays only on the plaintiff-worker’s
shoulders in federal age discrimination to prove by a preponderance of the evi- dence (51 percent) that age was the “but for” cause of the challenged adverse employment action. For example, “but for” the plaintiff ’s age, he or she would not have been terminated.
ADEA and Title VII EEO cases must wear different legal attire. Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, No. 08-441 (6/18/09).
The Modern Day Goblin— Disparate Treatment in the Name of Preventing Disparate Impact
A goblin is a mischievous, annoying little creature that loves to create and prey on conflict. In Ricci v. DeStefano, the U.S. Supreme Court recently addressed what is becoming a more common workplace goblin—discrimi- nation to avoid discrimination.
What does that mean? Title VII pro- hibits two types of discrimination. One is the disparate treatment of people (intentional acts of employment dis- crimination based on race, color, reli- gion, sex and national origin). The other is a disparate impact on people (policies or practices not intended to discrimi- nate but that have a disproportionately adverse effect on minorities).
In certain narrow cases, an employ- er may engage in one form of Title VII discrimination in the name of avoiding the other. But how does the employer know what to do?
In Ricci, the city of New Haven faced this issue. The city was using examina- tions to identify firefighters best quali- fied for promotion. The results of the exam showed that white candidates had outperformed minority candidates. This caused quite a dilemma for the city. If it
72 METALFORMING / OCTOBER 2009
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YOU & THE LAW DOUGLAS B.M. EHLKE
EEO Halloween of Costumes, Goblins and Ghosts