Looking Ahead: Employment Discrimination

The Court could be looking at several cases involving both age discrimination and disability discrimination.

Age Discrimination

Employment Discrimination Supreme Court Preview

As discussed in last year’s preview, a Fourth Circuit panel in DiCocco v. Garland, issued an opinion that the federal-sector provisions of the Age Discrimination in Employment Act (“ADEA”) did not permit a claim founded on a “disparate impact” theory of liability. The Fourth Circuit vacated the panel’s ruling and granted rehearing en banc. 18 F.4th 406 (4th Cir. 2021), rehearing en banc granted by, No. 20-1342, 2022 WL 832505 (Mar. 21, 2022). When the Department of Justice changed its position to recognize the applicability of this theory, the court remanded the case to the district court for reconsideration. This favorable position regarding the applicability of disparate-impact claims remains the status quo in the Fourth Circuit. On remand, the plaintiff successfully fought off a motion to dismiss on other grounds, i.e., whether she suffered an “adverse employment action” when disciplined for failing to retake a “Physical Abilities” test. Id., No. 3:19-cv-00159 (E.D. Va., Apr. 27, 2023) (ECF No. 38).

In the same vein, last year we highlighted the Protecting Older Job Applicants Act (“POJA”), which, if enacted, would amend Section 4(a)(2) of the ADEA to ensure that older job applicants in both the federal and private sectors could bring disparate impact claims to challenge unlawful hiring practices. This would overturn those court decisions holding that the ADEA’s disparate impact provision does not protect job applicants. See, e.g., Kleber v. CareFusion Corp., 888 F.3d 868 (7th Cir. 2018), vacated and contrary result entered on reh’g en banc, 914 F.3d 480 (7th Cir. 2019). The POJA Act was reintroduced in 2023 and referred to the Committee on Education and Workforce.

There has been recent activity with respect to arbitrating claims of age discrimination under the ADEA. In June, a bipartisan group of senators introduced the Protecting Older Americans Act (“POAA”). Building off the recent actions to ban forced arbitration in cases involving sexual harassment and sexual assault in the workplace, the POAA would ban forced arbitration in cases alleging age discrimination in violation of the ADEA. If passed, the law would significantly expand access to courts for older adults facing age discrimination in the workplace.

Disability Discrimination

Although the COVID-19 pandemic has receded and cases addressing the virus have declined in number, remote work has grown as a subject of disability employment rights litigation. While it may be too soon to expect cases to be presented to the Court for resolution in this area, the proliferation of disputes regarding employee requests for remote work, often as a matter of disability accommodation, suggests that this aspect of employment litigation under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 is likely to become a subject matter for the Court within the next few years.

The hotly contested nature of many recent remote work decisions favors this perspective. For instance, a recent Fifth Circuit panel split on the question of whether an employee can request to work from home in the mornings as an accommodation for her disability. Montague v. U.S. Postal Service, No. 22-20113, 2023 WL 4235552 at *1 (5th Cir. June 28, 2023). Judge Ho, joined by Judge Southwick, ruled that Dionne Montague, a “public relations employee” for the USPS with peripheral neuropathy, “a nerve condition that often flares up in the morning,” posed a material fact issue for trial warranting denial of summary judgment to the USPS under the federal sector provision of the Rehabilitation Act. Id. at *1, 3—4. The majority observed: “It’s often said that 90% of life is showing up. But the right number no doubt varies from job to job. It may be reasonable to work part of the day at home for some jobs — but not for others. The correct answer turns on the nature of the job and the facts of the case.” Id. at *1. In another pithy passage, Judge Ho hinted that accommodation of remote work may be an issue destined to find sympathy from a conservative Supreme Court favorably disposed to religious accommodation: “Many federal civil rights laws prohibit discrimination…. But for certain classifications — namely, religion and disability — Congress requires more.” Id. Judge Edith Jones dissented, opining: “that [plaintiff] could ‘Uber’ to work should be held reasonable as a matter of law. The distance was less than a half a mile!” Id. at *5.

The Eighth Circuit dealt with this issue in an appeal involving an employee’s request to work remotely due to his multiple sclerosis flare ups. Mobley v. St. Luke’s Health System, Inc., 53 F.4th 452 (8th Cir. 2022). Although the court ultimately ruled in favor of the employer, it also found that the employee had made out a prima facie case under the ADA and discussed how an employer’s offering of remote work options may implicitly indicate that onsite presence is not an essential function. Id. at 456. Also recently, a district court in Pennsylvania entered judgment in favor of a professor who requested to teach remotely for the fall semester following a heart transplant and was categorically denied without consideration of his individual circumstances. Oross v. Kutztown University, No. 21-5032, 2023 WL 4748186 (E.D.P.A. July 25, 2023). A recent Bloomberg study shows that the number of cases dealing with these issues is increasing, and that in recent years employees have won more cases on these issues than in the past.

Daniel Kohrman

Dkohrman@aarp.org

Benjamin L. Davis, III

BDavis@aarp.org

Lauren Naylor

LNaylor@aarp.org

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