Saturday, February 17, 2018

Braaten v. Newmont USA Ltd.: How much younger is "substantially younger"?

In Braaten v. Newmont USA Ltd., No. 17-15394 (Feb. 15, 2018), the Ninth Circuit affirmed the district court's determination that John Braaten failed to establish a prima facie case of age discrimination when he was fired, because his replacement was less than 10 years younger.

This case illustrates a peculiarity about a claim of age discrimination. Ordinarily, if a plaintiff is trying to raise an inference of discrimination, he need only point to a similarly situated individual outside his protected class. For example, if an African American alleges that he was not hired because of his race, he can point to a white individual in order to raise an inference of race discrimination. But if a 55-year-old wants to show that he was not hired because of his age, can he point to a 54-year-old who was not hired? Although a 54-year-old comparator would obviously be younger, common sense tells us that a decisionmaker is unlikely to treat a 55-year-old worse than a 54-year-old because of a one-year age difference. Therefore, the mere fact that the favored individual is younger is not enough by itself to raise an inference of age discrimination. As a result, courts require that the comparator be "substantially" younger. Exactly what it means to be "substantially" younger is a subjective determination that is largely open to debate. However, the Ninth and the Seventh Circuits have concluded that a 10-year age difference is presumptively substantial.

The converse is that an age difference of less than 10 years is presumptively insubstantial, though this presumption can be overcome through other evidence that the employer was motivated by age discrimination. In France v. Johnson, 795 F.3d 1170 (9th Cir. 2015), John France, who was a 54-year-old border patrol agent when he was denied a promotion, alleged that he had established a prima facie case of age discrimination where the defendant had promoted four younger comparators. Although the comparators were an average of only 8 years younger than France, he had also presented evidence that the employer had explicitly expressed a preference for promoting younger agents and that an official had repeated retirement discussions with him shortly before the positions were advertised, even though France was not personally inclined to retire. Thus, although the 8-year age gap was presumptively insubstantial, France overcame that presumption.

By contrast, in the instant case, the court concluded that Braaten did not overcome the presumption that his comparator was not substantially younger "'by producing additional evidence to show that the employer considered his . . . age to be significant.' Instead, he admitted that Newmont never discriminated against him before his termination; that no one involved in his termination made any age-related comments; and that he did not make an internal complaint of age discrimination during his termination, even though he knew he could."

Interestingly, the individual who replaced Braaten was 9.5 years younger. Although less than 10 years, it's pretty close, and it seems really unlikely to me that a decisionmaker would engage in age discrimination if a comparator is 10 years younger but not if he is 9.5 years younger. Of course, you could further reason that if 9.5 years is enough, then so is 9 years; if 9 years is enough, then so is 8.5 years, and so on. (See this discussion of the sorites paradox.) Rather than stop at the prima facie case, however, the court also determined that Braaten failed to establish that the employer's asserted reason for firing him was pretextual. So even if the individual who replaced Braaten was "substantially younger," there was still insufficient evidence to establish unlawful age discrimination.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Thursday, February 15, 2018

Grussgott v. Milwaukee Jewish Day School: When does the ministerial exception apply?

In Grussgott v. Milwaukee Jewish Day School, No. 17-2332 (Feb. 13, 2018), the Seventh Circuit held that Miriam Grussgott's claim under the Americans with Disabilities Act was barred by the ministerial exception. This exception is grounded in the religion clauses of the First Amendment and recognizes that interference with a religious institution's selection of its "ministers" violates the Constitution. 

Rather than apply a formalistic test, the court stated that it was necessary to look at the totality of the circumstances to determine whether the exception applies. The court noted that Grussgott was expected to integrate religious teaching into her lessons and that the former principal cited Grussgott's significant religious teaching experience in the decision to hire her. Moreover, Grussgott taught students about Jewish holidays, prayer, and weekly Torah readings. 

Significantly, the court deferred to the defendant's view of whether Grussgott's duties were religious in nature. Although Grussgott may have believed that she was approaching her duties from a cultural or historical, rather than religious, perspective, her views did not affect whether the school genuinely viewed her duties as religious. As the court explained: "[T]he purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school's expectation -- that Grussgott would convey religious teachings to her students -- that matters."

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Wednesday, February 14, 2018

Cadoret v. Sikorsky Aircraft Corp.: Is hiring a full-time sign language interpreter a REASONABLE accommodation?

In Cadoret v. Sikorsky Aircraft Corp., No. 3:15cv1377(JBA), District Court Judge Janet Arterton rejected the defendant's contention that James Cadoret's request for a sign language interpreter was unreasonable as a matter of law. Cadoret, a deaf individual whose primary language is American Sign Language, had requested that the defendant provide a sign language interpreter so that he would have "access to equal benefits and privileges of his employment," which included being able to participate in meetings and training and to converse with supervisors. The defendant contended that Cadoret's request was per se unreasonable because it would require the hiring of a full-time employee to accommodate Cadoret. Disagreeing, Judge Arterton concluded that even assuming a reasonable accommodation would require the hiring of a full-time interpreter, which Cadoret disputed, there were no "extraordinary circumstances" in the record so as to render provision of an interpreter unreasonable.

Before Arterton's decision, a few other courts had likewise concluded that an employer might be required to provide a full-time sign language interpreter as a reasonable accommodation, including the federal district court in Maryland (Searls v. Johns Hopkins) and the Ninth Circuit (EEOC v. UPS Supply Chain Solutions). Notably, in upholding a full-time sign language interpreter as a reasonable accommodation, courts have largely overlooked whether such an accommodation would in fact ever be reasonable.

In U.S. Airways v. Barnett, 535 U.S. 391 (2002), the Supreme Court rejected the contention that to be reasonable, an accommodation need only be effective. Accordingly, the Court held that reassigning an employee to a vacant position, even if it would be an effective accommodation, would generally not be a reasonable accommodation where the reassignment would violate collectively bargained seniority rights.

In other cases, some lower courts have evaluated the reasonableness of an accommodation by looking, in part, at the benefits of an accommodation relative to its costs. For example, in Borkowski v. Valley Central School, No. 92-7254 (2d Cir. 1994), the court stated:
"Reasonable" is a relational term:  it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce. This requires an inquiry not only into the benefits of the accommodation but into its costs as well. We would not, for example, require an employer to make a multi-million dollar modification for the benefit of a single individual with a disability, even if the proposed modification would allow that individual to perform the essential functions of a job that she sought.  In spite of its effectiveness, the proposed modification would be unreasonable because of its excessive costs.  In short, an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce.
Even if this kind of cost-benefit analysis is not integral to evaluating reasonableness, it is clear that by only requiring an employer to provide a reasonable accommodation, Congress put some limits on the kinds of accommodations that an employer can be required to provide. As a result, although an employer may be able to easily afford a particular kind of accommodation, that accommodation may still fall outside the bounds of what is legally required. 

If an employer is required to hire a full-time employee to accommodate someone else, then the employer is essentially having to hire two individuals when one would usually do. Is that a reasonable accommodation? Courts need to grapple with that question.

Another interesting aspect of cases involving requests for full-time interpreters is that they can be based to some extent on a deaf employee's limited written English skills. Written communications can be a reasonable means of accommodating deaf workers in many circumstances, and in the EEOC's fact sheet about deafness and hearing impairments, the agency discusses sign language interpreters as an accommodation to facilitate oral communication, not as an accommodation to address limited English ability. In some cases, however, an individual's limited written English skills will mean that written English communications will not be an effective accommodation, so the only accommodation may be to provide a sign language interpreter for a variety of communications, which may even include the translation of some employer materials from written English to American Sign Language.

A lurking issue here, which I've wondered about but haven't seen addressed in cases, is whether accommodating limited English skills falls under the Americans with Disabilities Act. Under the ADA, an employer is required to accommodate an individual's mental or physical limitations, and typically, there is a close connection between the limitation and the need for the accommodation. If an individual has a mental impairment that limits the ability to learn written English, then the person's limited written English skills are caused by the impairment. But if someone has weak written English skills because English is not his first language, then the connection to disability seems more tenuous. Some experts appear to believe that written English can be more difficult to learn for someone who is deaf, and particularly so if the individual was born that way, than for a hearing individual. I've seen others, however, suggesting that someone going from ASL to written English is not that different from someone going from Chinese or Russian to English.  If a deaf individual can learn written English as easily as a native Chinese or Russian speaker, then is accommodating poor English skills still akin to accommodating deafness? If not, then how difficult must it be for a deaf individual to learn written English in order for an employer to be required to provide an accommodation under the ADA?


This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Monday, February 12, 2018

Why do women Uber drivers earn 7% less per hour than men?

A recent episode of the podcast Freakonomics highlighted a paper by five economists that ferrets out the underlying reasons why male Uber drivers earn an average of 7% more per hour than female Uber drivers. Because Uber drivers are part of the "gig" economy and enjoy great flexibility in setting their work schedules, the substantial size of the pay gap was surprising. The authors attributed none of the gap to the algorithm by which the company compensates drivers, which is gender-blind, nor to customer discrimination, since riders don't prefer drivers of a particular sex. Rather, the authors concluded that the pay gap could be explained by three factors: men tend to drive more lucrative routes, such as to and from airports (20% of the gap); men work longer and therefore know more about how to make money on the platform (30% of the gap); and men drive about 2% faster than women and are able to complete more trips (50% of the gap).

Of course, the Uber study does not show that a wage differential between men and women can never be attributable to any extent to sex discrimination. Instead, it illustrates that, even in the absence of sex discrimination, women can still earn less than men. As explained by Stanford economist Rebecca Diamond:
I think this is showing that the gender pay gap is not likely to go away completely anytime soon. Unless somehow, things in our broader society really change, about how men and women are making choices about their broader lives, than just the labor market. But it's not also a worry that the labor market is not functioning correctly. It makes sense to compensate people who are doing more productive work. It makes sense to pay people more if they work more hours. I mean, I don't think those are things that we would ever consider thinking should be changed because that they're a problem. Those are just real reasons that productivity can differ between men and women. And we should compensate people based on productivity.
Outside the gig economy, the longer hours typically worked by men are also likely to translate into both an experience advantage and higher hourly wages. Although such wage premiums may contribute to a gender wage gap, they also reflect a societal consensus that hourly wage rates should rise as employees devote a higher proportion of their time to work. 

As it turns out, Uber has since adopted a compensation model that allows riders to tip drivers, and riders tend to tip women more than men. Whether we should be applauding tipping as a solution to the Uber pay gap is questionable, however, to my mind, given that customer tips can reflect sexism, racism, and other biases -- the very thing we are trying to eradicate.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Sunday, February 11, 2018

O'Connor v. Oakhurst Dairy: Statutory Construction and the Perils of Sloppy Punctuation

Oakhurst Dairy has reportedly agreed to pay $5 million dollars to delivery drivers who brought an overtime claim under Maine law. This case has delighted grammar geeks because it turned on the absence of a serial, or Oxford, comma. For those who don't remember their high school grammar, a serial comma is the last comma preceding the conjunction in a series, such as "red, white, and blue." Although not usually necessary, omission of a serial comma can create an ambiguity in certain cases, and that's what happened here. 

Under the provision at issue, overtime protections do not apply to: "The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods."

The issue presented was whether "packing for shipment or distribution" refers to two categories -- one, packing for shipment, and two, distribution" -- or one category -- packing for shipment or distribution. If there had been a serial comma before "or distribution," then delivery drivers clearly would have been exempted, but the lack of a comma created the ambiguity whether the Maine legislature had intended to merely exempt two kinds of packing, either for shipment or distribution. 

As the First Circuit saw it, there were arguments on both sides. On the drivers' side, for example, the term "distribution," unlike the terms used for activities clearly exempted, such as "canning" and "processing," is not a gerund, suggesting that it serves a similar purpose to "shipment." On the defendant's side, the court noted the omission of a conjunction before "distribution." Ultimately finding the statute ambiguous, the court construed the exemption narrowly in the drivers' favor, in furtherance of the remedial purpose of the statute.

On the lighter side, check out this video of the Vampire Weekend song "Oxford Comma."

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Teixeira v. Town of Coventry: Jury Instructions and the McDonnell Douglas Framework

In Texeira v. Town of Coventry, No. 17-1049.01A (Feb. 7, 2018). the First Circuit rejected the plaintiff's contention that the district court abused its discretion by instructing the jury on the McDonnell Douglas framework.

The McDonnell Douglas framework was established by the Supreme Court case in 1973. Because most victims of employment discrimination cannot point to a smoking gun, they typically have to establish a violation by pointing to circumstantial evidence. McDonnell Douglas established a structure for evaluating such evidence. Under the McDonnell Douglas framework, a plaintiff principally establishes discrimination by creating a weak of inference of discrimination and by undermining the credibility of the employer's asserted reason for the challenged action.

As I discussed in a prior post, Supreme Court Justice Neil Gorsuch, a vocal critic of the McDonnell Douglas framework, has mistakenly contended that the framework is limited to the summary judgment phase of a trial and that it is not relevant once a case gets before a jury. Indeed, in the 2000 decision in Reeves v. Sanderson Plumbing Products, a unanimous Supreme Court applied the McDonnell Douglas framework in upholding a jury verdict under the Age Discrimination in Employment Act. 

Likewise, in Teixeira, the First Circuit explained:
The Supreme Court's development of the McDonnell Douglas framework is a landmark in the realm of discrimination law. In this landmark decision, the Court did not restrict the use of the McDonnell Douglas framework to pretrial motions. Since then, lower courts routinely have signaled their approval of the use of adapted versions of the McDonnell Douglas framework to help jurors understand their roles in determining the merits of discrimination and retaliation cases. 
The First Circuit acknowledged that juries can be confused by the use of technical phrases that are part of the McDonnell Douglas framework. The answer, however, is not to abolish reliance on the framework in instructing juries but to present it in a way that can be easily understood. Here, the First Circuit concluded that the district court had passed that test, providing "the jury with a thoughtful, thorough, and easily understandable explanation of the relevant legal concepts."

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Perez v. City of Roseville: When is firing a cop for off-duty sexual conduct unconstitutional?

In Perez v. City of Roseville, No. 15-16430 (Feb. 9, 2018), the Ninth Circuit ruled that a police officer's private, off-duty sexual conduct is protected by the U.S. Constitution. Janelle Perez was fired after an internal affairs investigation revealed that she was having an extramarital affair with a fellow officer. She presented evidence that some investigators recommended that she be fired based, in part, on their moral disapproval of her extramarital sexual conduct. Citing the Supreme Court's decision in Lawrence v. Texas, which struck down a Texas statute criminalizing same-sex sexual conduct, the Ninth Circuit explained that the Constitution protects the freedom to engage in intimate sexual conduct and that the government may not "stigmatize private sexual conduct simply because the majority has 'traditionally viewed a particular practice,' such as extramarital sex, 'as immoral.'" Therefore, terminating a police officer for private, off-duty sexual conduct would be unconstitutional unless the conduct either "adversely affected the officer's on-the-job performance or violated a constitutionally permissible, narrowly tailored department policy." 

The Ninth Circuit's decision stands in stark contrast to Coker v. Whittington, No. 16-30679 (May 23, 2017), in which the Fifth Circuit held that the defendant did not violate the constitutional rights of two sheriff's deputies when it fired them for violating its Sheriff's Code of Conduct by moving in with each other's wife and family before getting divorced from their current wives. (See this post.)  Although the Coker case presents somewhat different facts, the deputies, like Perez, were allegedly fired for private sexual conduct that was perceived as being immoral, so they may very well have fared better in the Ninth Circuit. 

Despite the Ninth Circuit's narrow approach, police departments presumably would have some discretion  to discipline officers for inappropriate sexual conduct. For example, sexual conduct between an officer and a suspect being investigated by the officer might be seen as affecting job performance. Similarly, a department might be able to justify a policy that limits sexual conduct between a supervisor and a subordinate.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.