Labor and Employment

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 72 No. 4

Labor and Employment

W. Jonathan Martin II

Patricia-Anne Brownback

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Labor and Employment*

by W. Jonathan Martin II**

and Patricia-Anne Brownback***

I. Introduction

This Article focuses on case law concerning federal laws pertaining to labor and employment.1 The following is a discussion of those opinions.2

II. Supreme Court Decisions

The Supreme Court of the United States issued multiple decisions affecting labor and employment laws in 2020.

In Babb v. Wilkie,3 the plaintiff, Noris Babb, brought claims for discrimination under Title VII of the Civil Rights Act of 1964 (Title VII)4 and the Age Discrimination in Employment Act (ADEA)5 against the Secretary of the Veteran's Administration, Robert Wilkie.6 The Supreme Court took this case to determine whether the federal-sector provision,

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§ 633a(a), of the ADEA requires the type of heightened "but-for" causation used in standard ADEA cases.7 Ultimately, the Court rejected using the heightened standard.8

The plaintiff claims that she was discriminated against in three specific instances: (1) her "advanced scope" designation was taken away, which made her eligible for promotion on the federal government's General Scale from a GS-12 to a GS-13; (2) she was denied training opportunities and was passed over for positions in the hospital's anticoagulation clinic; and (3) her holiday pay was reduced when she was placed in a new position. The plaintiff relied on evidence that supervisors made age-based comments to support her allegations that these personnel decisions were based at least in part on her age.9

The Supreme Court held that under the federal-sector provision of the ADEA, plaintiffs must show that "age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself."10 The Court analyzed the plain meaning of the statutory language and determined that "shall be made free from any discrimination based on age" was the determining phrase.11 The Court interpreted this to mean that the decision-making process for personnel decisions must not involve any consideration of age.12 However, at the end of the day, the government will not be liable for damages unless the federal employee can show that age discrimination was the but-for cause of the employment action.13 So, if the government can show that the employment decision would have been made regardless of the employee's age, the government will not be liable for any damages to the employee.14

In Bostock v. Clayton County, Georgia,15 the Supreme Court ruled that discrimination based on sexual orientation or gender identity is a form of "sex" discrimination prohibited under Title VII.16 This decision resolved three lower court decisions: Bostock v. Clayton County (Eleventh

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Circuit)17 and Zarda v. Altitude Express (Second Circuit),18 which involved sexual orientation discrimination, and EEOC v. R.G. (Sixth Circuit),19 which involved gender identity discrimination.20

The Supreme Court determined that Title VII incorporates a "but-for" test when someone is treated differently, and rejected the "sole cause" argument.21 Under the sole cause argument, employees cannot recover unless they show their protected class was the only reason the employer discriminated against them.22 Here, the Court said that an employee can show a violation of Title VII by showing that sex was a but-for reason for the adverse action.23 The Court explained, "[i]f the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred."24 Specifically pertaining to sexual orientation and gender identity, "[s]ex plays a necessary and undisguisable role in the decision, [which is] exactly what Title VII forbids."25 In rejecting the argument that these protected characteristics are not spelled out in the statute, Justice Gorsuch provided examples of other situations where protected characteristics that were not specifically included in the statute, but are incorporated under Title VII, such as sexual harassment and "motherhood discrimination."26 As a result of this decision, employees may now bring charges with the Equal Employment Opportunity Commission (EEOC) for discrimination based on sexual orientation and gender identity, and can eventually bring lawsuits against their employers for the same.

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III. Americans with Disabilities Act

The Americans with Disabilities Act (ADA)27 prohibits discrimination by employers against qualified disabled individuals.28 A "disability" under the ADA includes "a physical or mental impairment that substantially limits one or more major life activities . . . a record of such impairment; or being regarded as having such an impairment . . . ."29 Major life activities include, among others, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."30

Cases brought under the ADA are examined under a burden-shifting analysis, where the employee must first establish a prima facie case of discrimination.31 To establish a prima facie case of ADA discrimination, an employee must show "(1) a disability, (2) that she was otherwise qualified to perform the job, and (3) that she was discriminated against based upon the disability."32 Once an employee has made out a prima facie case of discrimination, the burden then shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for its actions.33 If the employer meets this burden, the presumption of discrimination disappears; however, the employee can still prove discrimination by offering evidence demonstrating that the employer's explanation is pretextual.34

In Munoz v. Selig Enterprises Inc.,35 the plaintiff was an executive assistant that suffered from chronic health issues related to her reproductive organs. She was eventually terminated after her supervisors said that her work performance deteriorated as a result of her medical conditions. She brought suit alleging Family and Medical Leave Act (FMLA)36 interference and retaliation37 and a failure to accommodate and retaliation under the ADA.38 The United States

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District Court for the Northern District of Georgia granted summary judgment on her ADA claims because the plaintiff failed to show that she was disabled within the meaning of the ADA.39

A disability under the ADA is defined as an impairment that "substantially limits . . . a major life activity as compared to most people in the general population."40 This "include[s], but [is] not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."41 It can also include the operation of a major bodily function, such as in this case, the endocrine or reproductive organs.42

The United States Court of Appeals for the Eleventh Circuit agreed with the district court that the plaintiff failed to establish that she was disabled under the ADA.43 The plaintiff claimed, but failed to present evidence on the record, that she was limited in the major life activities of working and sleeping.44 Further, there was no record that Munoz's health was impaired; there was no evidence of time, frequency, and duration of her impairments; and she relied only on her testimony as to the affects the medical conditions had on her.45 The plaintiff did not present sufficient evidence that her reproductive system conditions substantially limited her ability to procreate.46 The plaintiff did not carry her burden to show the first prong of the ADA analysis, that she was disabled under the ADA, and thus the district court was correct to grant summary judgment for this claim.47

IV. Title VII of the Civil Rights Act

Title VII of the Civil Rights Act (Title VII) does not allow employers to discriminate based upon the protected classes of race, color, religion, sex, or national origin.48 This includes limiting, segregating, or classifying employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color,

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religion, sex, or national origin."49 For an employee to prove disparate impact under Title VII, the employee must demonstrate that the employer used a particular employment practice on the basis of one of the above protected classes, and the employer cannot show that the alleged practice is job-related and related with business necessity.50 "[T]he plaintiff in an employment discrimination lawsuit always has the burden of demonstrating that, more probably than not, the employer took an adverse employment action against him on the basis of a protected personal characteristic."51 The nature of discrimination suits generally renders the "traditional framework" of direct evidence inadequate because a plaintiff cannot easily prove "the state of mind of the person making the employment decision."52 "Furthermore, unlike some other torts, in which state of mind can be inferred from the doing of the forbidden act, the employer's state of mind cannot be inferred solely from the fact of the adverse employment action"53 Therefore, the Supreme Court developed a three-part, burden-shifting analysis "[t]o make matters somewhat easier for plaintiffs in employment discrimination suits."54

In McDonnell Douglas Corp. v. Green55 and Texas Department of Community Affairs v. Burdine,56 the United States Supreme Court established a three-step process for the "allocation of burdens and order of presentation of proof" when a plaintiff relies on...

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