1. Supreme Court Decisions Mary Rose Strubbe Chicago-Kent College of Law mstrubbe@kentlaw.edu www.kentlaw.edu/faculty/mstrubbe

2. Meacham v. Knolls Atomic Power Laboratory June 19, 2008 ADEA – disparate impact claims –If employer raises the “reasonable factors other than age” defense, employer bears burden of persuasion as well as burden of production, as section 623(f)(1) of the ADEA provides an affirmative defense.

3. Sprint v. Mendelsohn February 26, 2008 In age discrimination case, “testimony by nonparties alleging discrimination at the hands of supervisors … who played no role in the adverse employment decision” challenged by plaintiff is neither per se inadmissible nor admissible; rather, the district court in the first instance must determine whether testimony of employees who were not

4. Mendelsohn (cont.) “similarly situated” is relevant under Federal Rules of Evidence 401 and 402. If the district court concludes the evidence is relevant, it must next determine whether, “under Rule 403, the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay.”

5. Mendelsohn (cont.) Remember – the district court is accorded wide discretion in determining the admissibility of evidence, especially under Rule 403. So this is an opportunity to make a case- by-case argument – at least there is no categorical rule against the admissibility of such evidence.

6. Mendelsohn (cont.) Why do plaintiffs want such evidence admitted?

7. Gomez-Perez v. Potter Plaintiff postal worker claimed she was retaliated against after she filed an administrative complaint alleging age discrimination under the ADEA. Court held that section 633a(a)’s prohibition of “discrimination based on age” (the federal sector provision of the ADEA) covers retaliation.

8. Gomez-Perez (cont.) Court relied on its conclusion in Jackson v. Birmingham Board of Ed., 544 U.S. 167 (2005), finding that Title IX’s prohibition of discrimination “on the basis of sex” included a prohibition on retaliation because of a complaint of sex discrimination, to be the logical analog of the federal sector ADEA prohibition of “discrimination based on age.”

9. Gomez-Perez (cont.) In Jackson, Court reasoned that “[r]etaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination.” In Gomez- Perez, the Court reached the same conclusion (despite that fact the the ADEA provision that prohibits age discrimination in the private sector contains very different language and specifically prohibits retaliation).

10. Gomez-Perez (cont.) Court relied on principles of statutory construction and on the fact that the ADEA’s federal sector provision, added six years after enactment of the ADEA, was not modeled after the ADEA’s private sector provisions but rather after Title VII’s federal sector discrimination ban. (6-3 decision – Justice Alito wrote for the majority.)

11. Federal Express Corp. v. Holowecki What constitutes the requisite “charge” of discrimination? How much deference should be given to the EEOC’s regulations and procedures? Another ADEA case, and note the majority’s caution that enforcement mechanisms and statutory prerequisites ARE NOT THE SAME under all the statutes the EEOC enforces.

12. Holowecki (cont.) The ADEA requires aggrieved employees to file “a charge alleging unlawful discrimination” with the EEOC before filing a suit, but the statute does not define “charge.” Holowecki and others filed suit, alleging that several of Fed Ex’s policies were designed to force older couriers out of the company.

13. Holowecki (cont.) One of the plaintiffs filed an “Intake Questionnaire” with an attached affidavit describing the allegedly discriminatory practices in detail. Employer argued that these documents did not comprise a “charge,” and that therefore that employee should be dismissed. District court granted motion to dismiss; Second Circuit reversed. Court agreed with the Second Circuit that the documents did qualify as a “charge.”

15. Holowecki (cont.) Decision (7-2, majority opinion written by Kennedy) discusses Chevron deference rules as well as level of deference appropriate where the agency is interpreting the staute itself. Court adopts the EEOC’s position, which is that a filing is a “charge” when the filing includes the information required in sections 1626.6 and 1626.8(a), and further, if the filing

16. Holowecki (cont.) “taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights.” This is not a “state of mind” requirement; rather, “the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes….”

17. Holowecki (cont.) While this “permissive standard” may result in a “wide range of documents” being classified as charges, such a “result is consistent with the design and purpose of the ADEA.” This standard is within the EEOC’s authority to formulate, even if it is unfortunate that the employer had no opportunity for conciliation in this case because the EEOC didn’t process the documents as they would a “charge,” and therefore did not notify the employer. (I think we may see some revisions in EEOC forms or processes as a result of the Court’s opinion.)

18. CBOCS West, Inc. v. Humphries Section 1981 also encompasses retaliation claims! 7-2; Justice Breyer authored the majority opinion.