Last term, for the second time, the Supreme Court denied certiorari on the question of whether outside job applicants can use the disparate impact theory to challenge age discrimination under section 4(a)(2) of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a)(2) (2016). See Kleber v. CareFusion Corp., 140 S. Ct. 306 (2019). In cases raising this issue, en banc U.S. Courts of Appeals have vacated panel decisions recognizing such a claim. See Kleber v. CareFusion Corp., 888 F.3d 868 (7th Cir. 2018)(AARP Foundation attorneys represented Mr. Kleber), vacated and contrary result entered on reh’g en banc, 914 F.3d 480 (7th Cir. 2019), and Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288 (11th Cir. 2015), vacated and contrary result entered on reh’g en banc, 839 F.3d 958 (11th Cir. 2016), cert. denied, 137 S. Ct. 2292 (2017). In light of the divergent opinions on this issue, we are likely one circuit court opinion away from the Court having to decide this incredibly important issue for older workers.
Another emerging issue involving disparate impact claims in the age discrimination arena—a theory the Court recognized as valid in Smith v. City of Jackson, 544 U.S. 228 (2005), and further defined in Meacham v. Knolls Atomic Power Lab., Inc., 554 U.S. 84 (2008)—is whether sub-groups of individuals over age 40 (such as those 50 and over) may bring disparate impact claims under the ADEA. The Seventh Circuit recently concluded that such an approach is allowed in O’Brien v. Caterpillar, Inc., 900 F.3d 923, 930 (7th Cir. 2018), a case involving older workers eligible to retire who were laid off in a reduction-in-force and were denied unemployment benefits unless they agreed to retire. The company also paid such benefits to retirement-ineligible employees as part of an agreement with machinist and aerospace worker unions in return for the union’s agreement to eliminate a formal unemployment benefits plan. Id. at 925. The plaintiffs—retirement-eligible workers who were laid-off but who declined to retire and, thus, did not receive unemployment benefits—alleged that denying them such benefits had a disparate impact on older laid-off workers. Id. at 927. The parties disagreed on how to measure the impact: Caterpillar urged the Court to compare the impact on workers age 40 and over with that on workers under age 40, while Plaintiffs argued that the proper comparison was between retirement-eligible and retirement-ineligible workers. Retirement-eligible workers were significantly older, and yet, only they had to take an additional step—retiring—to receive unemployment benefits. Id. at 929.
The Court agreed with the plaintiffs that the ADEA does not require a rigid under- and over-age-40 analysis. Yet, it affirmed dismissal of the plaintiffs’ claims, finding that the payout formula was founded on “reasonable factors other than age,” such as the company’s desire to encourage the retirement of retirement-eligible employees. Id. at 933. The Third Circuit has also approved ADEA “sub-group” claims, see Karlo v. Pittsburgh Glassworks, LLC, 849 F.3d 61, 66 (3d Cir. 2017), while the Eighth Circuit two decades ago held otherwise, EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 950-951 (8th Cir. 1999).
The Court denied certiorari in two cases concerning the standard of proof of causation required under the Americans with Disabilities Act of 1990 (ADA), Murray v. Mayo Clinic, 934 F.3d 1101 (9th Cir. 2020), cert. denied, No. 19-995, 2020 WL 1978957 (U.S. Apr. 27, 2020) and Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019), cert. denied, No. 19-732, 2020 WL 1906572 (U.S. Apr. 20, 2020). In declining to hear these cases during the 2020 term, the Court may have simply postponed a reckoning. Federal appeals courts are in profound disagreement regarding the proper standard of causation in ADA litigation. As plaintiff Michael Murray claimed in his petition, the Fifth and Eighth Circuits apply a “motivating factor” test, as in race and sex and other employment discrimination cases under Title VII of the Civil Rights Act of 1964, while the Second, Fourth, and Ninth Circuits have embraced “but-for” causation. Petition for a Writ of Certiorari at 12-17, Murray v. Mayo Clinic, 934 F.3d 1101 (9th Cir. 2020). The First, Sixth, and Seventh Circuits have not yet settled on a standard for these claims. Id. at 17-24. These denials are in contrast with last year, when the Court decided two cases concerning causation in federal civil rights laws. See Babb v. Wilkie, 140 S. Ct. 1168 (2020) (holding 8-1, in an opinion penned by Justice Alito, that plaintiffs need only prove age was “a factor” in an employer’s conduct, rather than that it was a “but-for cause” thereof, in order to establish liability under the Federal sector provision of the ADEA, 29 U.S.C. § 633a(a); AARP and AARP Foundation filed an amicus brief supporting the employee); Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009 (2020) (declaring, in a unanimous decision authored by Justice Gorsuch, that the “but-for cause” standard must be satisfied in order to prove a violation of 42 U.S.C. § 1981 (1977), which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”).
The Court’s highly consequential employment discrimination decision this Term in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (holding 6-3, in an opinion by Justice Gorsuch, that the term discrimination “because of . . . sex” in Title VII encompasses bias based on sex stereotypes and gender identity), is likely to have significant ripple effects. As a result, it may give rise to follow-on cases before the Court, albeit under other Federal civil rights laws governing conduct beyond the realm of employment. For instance, Bostock is likely to be the basis for litigation challenging discrimination based on sex stereotypes and/or gender identity in colleges and universities and K-12 public schools under Title IX of the Higher Education Amendments of 1972, which prohibits discrimination because of “sex” in educational institutions receiving Federal financial assistance. This covers virtually all higher education institutions, based on their students’ receipt of Federal student financial aid, and all public schools. The core text of Title IX is not identical to that of Title VII, but it is very close.
One petition for certiorari still pending as of the issuance of this Preview poses issues of significant interest to employers hoping to limit the reach of two prior decisions, Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008), and Edelman v. Lynchburg Coll., 535 U.S. 106 (2002). See Petition for Certiorari, Vantage Energy Servs., Inc. v. EEOC, No. 19-1476 (U.S. July 2, 2020). In Holowecki, the Court ruled that an EEOC Intake Questionnaire filed by a claimant reflecting a clear request for the agency to act constituted a timely filed “charge” of discrimination satisfying the ADEA’s requirement of timely exhaustion of administrative remedies (i.e., time limits—usually 300 days—for filing a charge following an act of discrimination). 552 U.S. at 405; see also 29 U.S.C. § 626(d). In Edelman, the Court accepted an unverified charge as sufficient to satisfy Title VII’s analogous exhaustion deadline, even though the complainant failed to verify the charge until after expiration of the 300-day period. 535 U.S. at 109, 116-17. These decisions recognize that lay people, not lawyers, usually file EEOC charges. In Vantage, the petitioner-employer complains that the EEOC permitted its former employee to satisfy the ADA’s analogous exhaustion requirement based on his completing an unverified Intake Questionnaire shortly after his termination—upon returning from leave after a heart attack—and his filing a verified charge with EEOC eight months later. Petition for a Writ of Certiorari, Vantage, at 3-4, No. 19-1476. Vantage argues that allowing such filings to suffice undermines the goal of assuring timely notice to employers of their charge of discrimination and discourages complainants from promptly clarifying their intention to proceed before the EEOC. Id.