AARP’s brief argued that a federal employee who raised legitimate questions about his employer’s compliance with antidiscrimination laws cannot later be penalized for that whistleblowing. A federal appeals court disagreed.
Mark Palmquist was working for the U.S. Department of Veterans Affairs (VA) when he found himself denied promotional opportunities. He suspected this was based at least in part on complaints he made about failure to award him credits for his status as a disabled veteran. Among his evidence was an adverse letter that included an express reference to his complaint.
He filed a lawsuit alleging violations of the federal Rehabilitation Act of 1973 (or Rehab Act), which prohibits federal employers from discriminating on the basis of disabilities and from retaliating against federal workers based on their disability bias complaints.
A jury agreed with Palmquist on three of five counts, but the trial judge set aside that judgment and instead found in favor of the VA. The jury found that the VA retaliated against Palmquist for his earlier complaint, but it also found that the employer would have made the same decision regardless of whether it had considered the retaliation complaint or not. The court awarded Palmquist no relief. Palmquist appealed, arguing that the jury’s finding of retaliation should have shifted the burden of proof to the VA. Palmquist argued that as a matter of law, once retaliation was found, it was the VA’s burden of proof to show legitimate reasons for the subsequent adverse letter, which the VA did not do. Palmquist also argued that even if the jury’s verdict was warranted, he was entitled to “mixed-motive” remedies, as are provided in Title VII cases: injunctive and declaratory relief, attorneys fees and costs — all relief except for lost pay and money damages.
The issue of “mixed motive” discrimination claims — that is, where illegal discrimination is alleged to be a “motivating factor” in an employer’s mind, but not the only factor motivating conduct adverse to an employee — is a hotly contested one. Some federal circuits require that once illegal discrimination is shown, the employer must justify the adverse action while others hold that the burden remains on the employee to make his or her entire case.
In Gross v. FBL Financial (2009) the U.S. Supreme Court ruled out “mixed motive” age discrimination claims under the Age Discrimination in Employment Act (ADEA). The Court said plaintiffs have to show age was a “but-for” cause, not just a motivating factor, and it said the burden of proof never shifts to the employer. The question remains whether the reasoning in Gross applies to other laws, such as the Rehab Act and the Americans with Disabilities Act (ADA). AARP believes Gross was incorrectly decided and its reasoning should not be expanded beyond the ADEA.
AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief urging recognition of “mixed-motive” claims and the lower “motivating factor” standard, in Rehab Act cases. The brief argued that the Rehab Act’s text — especially the broad wording of protections for federal workers — as well as the Rehab Act’s legislative history, interpretations by the federal agencies charged with enforcing the act, and numerous court decisions compel the conclusion that Congress intended to provide protection from disability bias for federal workers commensurate with antibias protection contained in Title VII.
While appreciating AARP’s forceful support for the most “nuanced” argument put forth by the plaintiff, the Court of Appeals for the First Circuit applied the approach in Gross even to cases involving the federal Rehabilitation Act.
What’s at Stake
The question of what victims of workplace discrimination need to prove in enforcing their rights under the Rehab Act and ADA are critically important ones for people with disabilities and for older workers, who see a greater incidence of disabilities or perceived disabilities than other segments of the population. If older workers with disabilities are not provided the same protection as Congress afforded workers under Title VII, their rights to be free of workplace bias will be “second class.” This ruling is a disappointment that shows the pervasive effects the Gross decision is having in other areas of workplace law.
Palmquist v. Shinseki was decided by the U.S. Court of Appeals for the First Circuit.
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