What's age got to do with it? Recent developments in employment law in the United States Supreme Court.

• Author: Masinter, Eve Barrie

Introduction

OVER the last year and a half, we have witnessed the United States Supreme Court significantly reshape the landscape of labor and employment law. From a seminal decision regarding the application of the Age Discrimination in Employment Act (1) (ADEA) to claims of "reverse" age discrimination to the tax treatment of settlement proceeds in employment cases, the Supreme Court has given labor and employment lawyers much to consider. This article addresses the cases decided and pending before the Supreme Court and serves as a primer for practitioners on recent developments in employment law and litigation.

General Dynamics Land Systems, Inc. v. Cline (2)

In one of its most significant decisions in recent years, the Supreme Court finally answered the question of whether the ADEA supports a claim for reverse age discrimination. The Supreme Court found that the ADEA does not prohibit reverse age discrimination and that older workers in the protected class of forty and over can lawfully be favored over younger workers in the protected class.

In General Dynamics, a group of plaintiffs between the ages of forty and fifty challenged a decision made by General Dynamics to cease providing health benefits upon retirement to individuals presently working for the company but under the age of fifty at the time of retirement. These employees argued that the company's decision violated the ADEA because it "discriminate [d against them ] ... with respect to ... compensation, terms, conditions, or privileges of employment, because of [their] age." (3) More simply, they argued that the proposal set forth by General Dynamics favored older workers in the protected class over younger workers in the protected class.

The district court rejected the claim on the grounds that the ADEA does not prohibit "reverse age discrimination" (i.e., the favoring of older employees). (4) A divided panel of the Sixth Circuit reversed, holding that the statutory language prohibiting discrimination "because of age" was so clear that if Congress had meant to limit coverage only to older employees against younger employees, it would have so indicated. (5) A somewhat divided Supreme Court reversed, holding that Congress enacted the statute to protect the rights of older employees, who were often seen as less productive because of their age. When analyzed using this interpretation, the Court concluded that younger workers could not claim the statute as legal protection against discriminatory policies used to favor older workers, even though both were in the "protected" class as defined by the ADEA. (6)

In reaching this conclusion, Justice Souter, writing for the majority, found that, although the language "in the abstract" could be open to a construction favored by the employees, such a reading would not "square with the natural reading of the whole provision prohibiting discrimination" or with Congress' "interpretative clues [which] speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones who are getting treated better." (7) This view was bolstered by the legislative history, which focused on the arbitrary stereotypes facing older employees. The opinion points out that "if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40." (8) Given the legislative history, the majority concluded that the "ADEA's ban on 'arbitrary limits' thus applies to age caps that exclude older applicants, necessarily to the advantage of younger ones." (9)

Justice Scalia authored a brief dissent, focusing on the fact that the EEOC regulations supported the employees' view and that the statutory language itself "does not unambiguously require a different inter. pretation." (10) Justice Scalia also joined in Part II of the dissent authored by Justice Thomas (with Justice Kennedy joining Part II).

Justice Thomas' dissent is direct and to the point: the majority bypassed a straightforward statutory analysis by ignoring both the plain language of the statute and the legislative history in favor of what Justice Souter characterized as "social history." The dissenting opinions urge that because the prohibition against "discrimination because of age" is unambiguous and not restricted to discrimination because of relatively older age," the inquiry need not go beyond the language of the statute itself. To the extent it is necessary to consider the legislative history, the dissenters next point to the clear and unambiguous statement by Senator Yarborough, a sponsor of the ADEA, that "[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went." (11) Turning to the majority's "social history" analysis, Justice Thomas noted that if such reasoning were applied to the interpretation of Title VII (prohibiting race and gender discrimination), non-minorities would not receive protection under that statute, since the social factors behind Title VII establish that it was enacted to protect against discrimination directed toward minorities. Thus, the dissent concludes that both McDonald (12) (holding that Title VII prohibits reverse race discrimination) and Oncale (13) (holding that Title VII prohibits sexual harassment against men) would be wrongly decided using "social history" in place of traditional principles of statutory construction.

Despite the strong dissents, the Supreme Court's decision in General Dynamics answers a question that has been left open for some time: a cause of action for "reverse" age discrimination is not viable under the ADEA. Although a 46 year old may be "protected" under the language of the ADEA, that express protection is now limited. If a job action favors a 41 year old, the 46 year old may have a cause of action. If it favors a 51 year old, however, he or she does not.

Pennsylvania State Police v. Suders (14)

In a long-awaited decision, the Supreme Court resolved a split in the circuit courts of appeal regarding the application of the Ellerth/Faragher affirmative defense to constructive discharge cases. (15) These companion cases presented the Court with the task of articulating the standard for imposing liability on an employer for sexual harassment by its supervisory employees. The Court articulated what is now known as the Ellerth/Faragher affirmative defense, which provides that an employer may avoid liability for harassment engaged in by its supervisory employees if it can demonstrate that (1) it had in place measures to prevent and promptly remediate workplace harassment, and (2) the employee unreasonably failed to take advantage of those measures. However, the Court also held that employers could not utilize this defense where the harassment culminated in a tangible adverse employment action. This critical issue made its way back to the Court after six years of litigation regarding the scope of the term "tangible adverse employment action."

Justice Ginsburg, writing for the 8-1 majority in Pennsylvania State Police v. Suders, held that the Ellerth/Faragher defense may be available in certain situations when constructive discharge is claimed. Unless an employer takes an official action that precipitates the constructive discharge, the affirmative defense should be available. (16)

Suders was hired by the Pennsylvania State Police (PSP) as a communications operator. Her three male supervisors subjected her to a barrage of sexual harassment, up to the date of her resignation. The harassment consisted of one of her supervisors discussing people having sex with animals and that young girls should be given instruction on how to gratify men with oral sex. Another supervisor sat next to Suders wearing spandex shorts, spread his legs apart, grabbed his genitals, and shouted out a vulgar comment inviting oral sex. Suders once told him that she didn't think he should be doing this. Rather than stopping, the supervisor responded by jumping on a chair and again performing the gesture with accompanying vulgarity. This same supervisor rubbed his rear end in front of Suders and remarked, "I have a nice ass, don't I?" Another supervisor told her the "village idiot" could do her job and then pounded furniture to intimidate her while wearing black gloves.

In June of 1998, one supervisor accused Suders of taking a missing accident file home with her. After that accusation, Suders approached the PSP's Equal Employment Opportunity (EEO) officer and told her she "might need some help." The EEO officer gave Suders her telephone number but never followed up with Suders. In August of 1998, Suders again contacted the EEO officer and stated that she was being harassed and was afraid. The EEO officer told her to file a complaint but did not tell her how to obtain the necessary form. Two days later, Suders' supervisors arrested her for theft, and she resigned from the force. The arrest occurred after Suders discovered that her supervisors had never forwarded her computer skills exams to be graded, and she learned that their reports that she had failed were false. She learned this when she came upon her exams in a set of drawers in the women's locker room. She removed the exams from the locker room. Upon finding that the exams had been removed, her supervisors devised a plan to arrest her for theft. They dusted the drawer in which the exams had been stored with a theft detection powder that turns hands blue. When Suders attempted to return the tests to the drawer, her hands turned blue. She was then apprehended by her supervisors and handcuffed. Her hands were photographed, and she was questioned. She had previously prepared a written resignation, which she tendered soon after her supervisors detained her. Her supervisors initially refused to release her and instead brought her to an interrogation room and gave her Miranda warnings and questioned her. When she...