Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Recently, the 11th Circuit issued an opinion addressing the Alabama Age Discrimination In Employment Act (AADEA) in the case of Ehrhardt v. Haddad Restaurant Group.  Ehrhardt, a General Manager, was demoted due to poor sales and profits at the restaurant and his poor management of employees.  Ehrhardt challenged and rebutted the latter, and the court found that there was little evidence indicating that he had problems with staff.  The Court found that the restaurant did not discriminate against Ehrhardt by demoting him from General Manager to Beverage Director based on declining sales.  Ehrhardt was subsequently terminated as Beverage Director since the restaurant, based on an economic decision, decided there was no reason to continue to employ and pay commissions to a Beverage Director in a restaurant that was losing money. 

Under the AADEA, "no employer...shall discriminate against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment".  The analytical framework of the AADEA is the same as the federal Age Discrimination In Employment Act.  The Court examined this case pursuant to the Supreme Court's Gross decision, holding that in order to establish a disparate treatment claim under the ADEA, "a plaintiff must prove by a preponderance of the evidence...that age was the "but-for" cause of the challenged employer decision".  Although the Gross decision did not answer the question of whether the evidentiary framework of the McDonnell Douglas case is appropriate in the ADEA context, the 11th Circuit used both the Gross decision and the McDonnell Douglass decision to review Ehrhardt's claim.  Under McDonnell Douglas, there is a three prong test to analyze discrimination claims:  first, a plaintiff must establish a prima facie case of discrimination; second, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action; and third, the plaintiff must proffer evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action.  Based on the facts above, the 11th Circuit affirmed the granting of summary judgment in favor of the restaurant on Ehrhardt's' AADEA claim.  The restaurant was represented by one of my partners, Kyle Smith.

Practice pointer.  The "but for" test adopted in the Gross decision is a concept favorable for employers.  The 11th Circuits' use of both the Gross and McDonnell Douglas tests lays the groundwork for evaluating claims brought under the AADEA as well as the ADEA.

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Meridith Levinson published an article in PCWORLD on April 30 entitled "How to File an EEOC Employment Discrimination Charge:  Many tech professionals over 40 have tales of how age discrimination is rampant in the field."  The article discusses the belief in the IT world that once you are over 40, age discrimination is common.  She notes that many people dye their hair, male and female alike, leave dates of graduation off resumes and work experience that may "date them" to be over 40.  The article sets forth EEOC statistics from 2010 showing that the EEOC processed nearly 100,000 discrimination and retaliation charges, filed 271 suits and resolved 315 suits and won $85.1 million on behalf of "victims of discrimination".  Remedies under the Age Discrimination in Employment Act include reinstatement to their position as if there had been no discrimination, including back pay and benefits, double damages if there was a willful violation and attorney's fees.  Ms. Levinson goes on to detail how to file a charge, emphasizing how easy it is to do and that a charging party does not need an attorney to file a charge.  She points out that there is an intake form consisting of 4 pages, which can be done at the EEOC office or printed from the EEOC's website. Once the form is completed, it is provided to the EEOC, either in person or by mail.  The article goes on to talk about what happens next: the employer is notified by the EEOC and is asked to respond, mediation may take place, and if unsuccessful, the EEOC will investigate the charge.  If the EEOC determines that there may be a violation, they will either issue a right to sue letter, or in a small percentage of cases, file a lawsuit in the EEOC's name on behalf of the aggrieved person.

Practice pointer.  This article is an excellent description of how the EEOC process is started, and how the charge is handled by the EEOC.  It is interesting to me that this article is directed at a very focused group:  IT workers over 40.  I would not be surprised to see an uptick in ADEA claims being filed in this industry based on this article. 

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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