Atlanta Employment Lawyer Blog

The U.S. Supreme Court has ruled that black firefighters did not miss the deadline to file a cause of action for race discrimination against the City of Chicago, holding that reliance on a discriminatory test administered in the past can constitute a new violation of Title VII.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating on the basis of race. Race discrimination often occurs through facially “neutral” practices that have the effect of screening out minority applicants and employees, such as employment tests, appearance and dress codes, English-only rules.

At issue in Lewis v. City of Chicago was a written employment test administered to more than 26,000 firefighter applicants. The City of Chicago stated that everyone who scored above a 65 on the test was qualified, but would only hire those who were “well qualified” – i.e. those individuals who scored an 89 or better.

The firefighters brought a lawsuit under Title VII for race discrimination based on a disparate impact theory, i.e. that they were denied jobs as the result of a flawed employment test. In order to fall within the 300-day deadline to file a claim, the firefighters asserted that each time the fire department relied on the test to make a hiring decision a separate act of discrimination occurred, and hence constituted a “continuing violation.”

The trial court agreed and held that the score of 89 was statistically meaningless and had a “severe disparate impact against African-Americans.” The appeals court reversed.

On Monday, the U.S. Supreme Court reversed the appellate court decision. Writing for the majority, Justice Scalia stated that each use of a forbidden employment practice gave rise to a separate claim of discrimination. He distinguished between disparate impact and disparate treatment claims, noting that for disparate impact claims deliberate discrimination need not be shown within the limitations period. Although Scalia acknowledged this decision might allow suits for long-established practices, ruling otherwise would allow employers to use “an unlawful practice with impunity.”

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As the number of older Americans in the work place continues to increase, so does the number of Americans facing age discrimination at work. If you are over 40, the Age Discrimination in Employment Act (ADEA) prohibits your employer from discriminating against you and protects you from harassment based on your age.

Often, discrimination occurs when one company merges with another, or goes through a reduction in force (“RIF’) and evaluates which employees to retain or terminate. If the employee’s age is used to determine whether someone should be laid off, the employee may have a claim for age discrimination.

A recent case determined that when one company buys-out another, claims based on age discrimination survive. In Phair v. New Page Corp., a 55-year-old employee – David Phair – was fired after his employer was purchased by another company. In advising the new company regarding whom to retain and whom to eliminate, the managers of the former employer raised concerns about the age of some employees and offered anecdotal evidence about who might be a good fit. Without a comprehensive review of any employee personnel files or performance reviews, Phair was offered a temporary position involving significant travel. He declined this position and was fired. An additional 4 employees, all older than 40, were terminated as well.

Several factors affected the court’s determination that Phair could maintain a cause of action against the companies. First, the District Court found that although Phair’s offered transfer was lateral, it could be considered an “adverse employment action” because it involved switching from a full time position without travel to one involving extensive travel. Further, Phair was replaced with an employee 4 years, 9 months younger than him. Because authority is split on whether this constitutes a “substantial age difference,” the court determined that an age difference close to 5 years was sufficient to raise an inference of age bias. Finally, the court held that discriminatory comments such as concern over the “aging workforce” and the fact that statistically older workers were overrepresented in the group of employees let go was sufficient to create a triable issue on whether age was a “but for” factor in Phair’s termination.

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Many times job applications contain “legalese” – language that may waive a right or in someway limit an employee’s path to recovery. However, according to the U.S. Court of Appeals for the Sixth Circuit, provisions contained in a job application which limit an individual’s legal remedies may not be enforceable if the applicant did not knowingly or voluntarily waive those rights.

In Alonso v. Huron Valley Ambulance Co., the 6th Circuit Court of Appeals reviewed job applications signed by a married couple – Alan and Kimberly Alonso - seeking positions as paramedics with an ambulance company. Included on the forms were clauses providing that employees must submit any employment disputes to a grievance review board, including discrimination and contract issues. The forms also stated that candidates hired by the company could not commence any employment related action or legal proceeding for more than six months after the employment relationship ended and required the candidate to “waive any statute of limitation as to the contrary.”

The Alonsos signed these forms and were hired.

At an orientation meeting over a month later, the Alonsos received company manuals detailing an elaborate grievance procedure, including a provision that any dispute “arising out of or in connection with” employment, including civil rights, tort and contract claims “shall be exclusively subject to review by the Grievance Review Board” and any decision reached by the board would be binding.

In 2007, Alan joined the Army National Guard. Shortly thereafter Alan was fired for allegedly making false claims of being absent from work due to military duty and testing positive for a prescribed medication. Alan protested his firing, but the grievance board upheld the termination. Alan then sued in federal court claiming retaliation, as well as being terminated in violation of USERRA.

Kimberly joined the action as well, with allegations of sexual harassment, discrimination and retaliation.

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Many times as a condition of employment a new hire will sign an employment agreement containing a mandatory arbitration agreement. Often, these arbitration agreements provide that an arbitrator has the exclusive authority to resolve certain employment disagreements.

Although arbitration may have many advantages, such as being quicker and less expensive than traditional litigation, the mandatory arbitration clauses often found in employment agreements or employee handbooks can be unfair and contain unfavorable provisions.

In Rent-A-Center West Inc. v. Jackson, U.S., No. 09-587, oral argument 4/26/10), an African American account manager – Antonio Jackson - challenged who should determine if the mandatory arbitration clause he signed as a condition of employment was unconscionable and unenforceable – an arbitrator or the federal court.

The arbitration issue arose out of Jackson’s race discrimination case against Rent-a-Center, for the alleged failure of Rent-A-Center to promote him and its promoting of non-African American employees with less seniority. After complaining to his superiors, the Jackson was transferred and eventually fired.

The company then filed a motion to compel arbitration in order to resolve Jackson’s discrimination claims. Jackson objected, asserting that the arbitration agreement was “unconscionable and unenforceable” in part because it limited discovery and that he was told it was non-negotiable when he was hired by Rent-A-Center.

A decision is expected in June, however much of the questioning focused on whether the issues raised in this case deal with the formation – or “making of the agreement” – in which case the Court must decide if the agreement is valid or "post-formation” issues which the arbitrator would decide.

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Using medical marijuana doesn’t constitute a disability requiring reasonable accommodations, the Oregon Supreme Court decided earlier this month. In Emerald Steel Fabricators v. Bureau of Labor Indus., the S.Ct. held in a 5-2 decision that the federal Controlled Substances Act trumps the Oregon Medical Marijuana Act. In other words, employers are not required to make accommodations for those using medical marijuana and they may fire workers who test positive for marijuana, even if they have a medical marijuana card.

Under the ADA, employers are required to make an effort to reasonably accommodate your disability. This may be something simple like changing your start time or moving your workspace. If your employer fails to make the accommodation, then you may be able to file a claim of discrimination under the ADA.

Here, the Oregon Supreme Court joined with the California and Washington Supreme Courts in determining that medical marijuana usage is not a disability requiring a reasonable accommodation under the ADA.

This issue arose when a medical marijuana user who was working as a temporary drill press operator was being considered for a permanent position. Because the new position required drug testing, the employee told his supervisor that he was a registered medical marijuana user and used marijuana several times a day when off duty. Without discussion of alternatives, the employee was fired a week later.

The employee then filed a complaint alleging discrimination in violation of the anti-discrimination laws and the Medical Marijuana Act.

An administrative law judge found that the company failed to “reasonably accommodate” the employee’s disability. The state court of appeals affirmed, but the state Supreme Court determined that the Oregon Medical Marijuana Act was not enforceable because it is an “obstacle to the accomplishment” of the intent of the federal controlled substances act – i.e. controlling illegal drug usage.

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