Dimensions
A good year for workers' rights
. JOYCE S. ANDERSON Special to the Jewish Times

After Chief Justice John Roberts began his tenure last year, the decisions in cases that involved workers' charges of discrimination came through on the side of the employers. The most famous - or infamous - ruling was in the Lily Ledbetter case, when the Supreme Court (5 to 4) reversed lower court rulings that she receive damages for gender discrimination by Goodyear Tire and Rubber. There was enormous criticism of the Ledbetter ruling from Congress and the public.

In a surprising reversal of that trend, the 2007-2008 year saw five major worker discrimination cases decided in favor of the employees. Each case addressed different issues, but the results were the same and the margins of the votes were not close 5 to 4 decisions. Observers of the High Court are not sure why this change in direction has occurred, and business interests are very unhappy with these decisions.

• February 26, 2008. Sprint/United Management Company v.

Mendelsohn. Ellen Mendelsohn filed an age discrimination lawsuit against her employer and asked that five co-workers be allowed to testify on her behalf. All had lost their jobs in the same reduction in force and claimed, as she did, that it was because of their age. The five witnesses worked for and were dismissed by different supervisors. The issue in this case for the courts was whether co-workers could provide evidence that the corporate culture practiced age discrimination.

The unanimous decision by the Supreme Court was written by Justice Clarence Thomas in a nine page opinion that has been described as "cryptic." It did not provide a broad ruling on the central issue. Lower courts had come down on both sides. Federal District Court in Kansas said the co-workers experiences were irrelevant and should not be admitted. The Appeals Court in Denver overturned their decision, ordering that evidence of co-workers should always be admitted. Justice Thomas in effect rejected both opinions and presented the rationale for a case-by-case approach. He wrote that a District Court should make a "fact- intensive, context-specific inquiry" to determine the relevance of the evidence and whether it might be unduly prejudicial to the defendant. The complex opinion appeared to be a victory for the employer. However, since most discrimination cases have been dismissed in the lower courts, the result of this ruling is that plaintiffs have a better chance of getting their cases before a jury. This would include testimony from coworkers. Eric Schnapper, a law professor at the University of Washington and one of Ms. Mendelsohn's lawyers, said, "It's a big deal that portends a real change."

• February 27, 2008. Federal Express Corp. v. Holowecki. A group of 14 Federal Express couriers over the age of 40 sued for age discrimination against their employer. Under the law, employees must first file a discrimination charge with the Equal Employment Opportunity Commission and then wait 60 days before filing a lawsuit. The intent is to give the commission time to resolve the matter at that level. In this instance, the employees filed the wrong form with the E.E.O.C. - an "intake questionnaire" instead of a formal "charge" document. They did include an affidavit that explained the problem and asked the E.E.O.C. to " please force Federal Express to end their age discrimination plan." They charged that newly adopted policies at the company were aimed at forcing out older workers.

In a clear 7 to 2 decision, The Court ruled that an intake questionnaire and an affidavit, which the E .E.O.C. had considered a valid complaint, met its "permissive standard" as acceptable. Justice Anthony Kennedy wrote the majority opinion and stressed that workers who were not represented by lawyers could be expected to make certain mistakes in procedure. "The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes." He added that it was "consistent with the purposes" of the Age Discrimination in Employment Act to allow the initial complaint to be submitted on a form that was "easy to complete" or even as "an informal document, easy to draft." In short, the Federal Express case rested upon quibbling about the use of a wrong form, rather than the substance of the complaint by the 14 couriers.

The two dissenters were Justices Antonin Scalia and Clarence Thomas, who at one time headed the E.E. O.C. They complained of the " utterly vague criteria" in the majority ruling. And, the Bush administration, in a reversal from their support of Goodyear in the Ledbetter case, argued on behalf of the 14 couriers against Federal Express. It should be noted that the lawsuit, filed in 2002, has yet to go to trial.

• May 27, 2008. Two significant cases were decided barring employer retaliation against workers claiming discrimination. One case dealt with retaliation over age discrimination and the other with retaliation over racial discrimination. There has been a steady growth in retaliation complaints filed annually with the E.E.O.C. from 11,000 to 22,000 over the past 15 years. Employees have found it easier to bring evidence of retaliation rather than discrimination in the workplace.

In Gomez-Perez v. Potter, a clerk in the United States Postal Service in Puerto Rico, Myrna Gomez-Perez, 45, complained that she had been denied a transfer to a different office because of age discrimination. Her lawsuit charged that because of her complaint, her supervisors retaliated, making baseless accusations against her. Her suit was dismissed in the federal appeals court in Boston that hears cases from Puerto Rico on the ground that age-discrimination law did not cover retaliation claims by federal workers. When the case reached the Supreme Court, that ruling was overturned in a strong 6 to 3 decision written by Justice Samuel Alito in favor of Ms. Gomez-Perez.In his opinion, Alito wrote that the Age Discrimination in Employment Act did cover retaliation for federal workers as well as employees in the private sector. Chief Justice Roberts wrote in dissent, that retaliation problems of federal workers should be dealt with administratively rather than in the courts. He was joined by Justices Scalia and Thomas in dissent.

The second case, CBOCS West, Inc. v. Humphries, came from a lawsuit filed by Hedrick Humphries, a former assistant manager of a Cracker Barrel restaurant. Humphries, who is black, had complained to managers that a white assistant manager had been motivated by racial discrimination in firing a black employee. As a result, Humphries charged, he had lost his own job in retaliation for the complaint. The Supreme Court ruled in favor of Humphries by a solid 7 to 2 margin. He had sued under a post Civil War law that barred retaliation in the work place. Justice Stephen Breyer wrote the majority opinion, stressing the importance of "stare decisis," the doctrine of adhering to precedent. "Principles of stare decisis, after all , demand respect for precedent whether judicial methods of interpretation change or stay the same." Justices Thomas and Scalia dissented, saying the majority were hiding behind " the fig leaf of ersatz stare decisis."

• June 19, 2008. Meacham v. Knolls Atomic Power Laboratory. In this agediscrimination case, the employer laid off workers after a voluntary buyout failed to reach the desired reduction. Managers at the federal research laboratory in upstate New York were told to rate employees for how "flexible" and "retrainable" they were. All but one of 31 employees who were laid off were 40 or older. Protection under the Age Discrimination in Employment Act begins at 40. Twenty eight employees who were cut back filed the law suit.At the New York appeals court level, the ruling was that the employees had the burden of disproving an employer's defense of layoffs based on some other "reasonable factor" than age.

The Supreme Court in a 7 to 1 decision overturned that ruling and placed the responsibility on the employer for proving that a layoff or other action that hurts older workers more than others was based on other "reasonable" factors than agediscrimination. Justice David Souter wrote the majority opinion and said clearly, "There is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend." He added that it was a complaint to make to Congress that wrote the age-discrimination law. The response of business to this last case of the five workers' rights cases that had favored employees was immediate. "It's been a clean sweep", said Robin Conrad of the United States Chamber of Commerce. She said that the 2006-2007 Supreme Court term was "our best term ever. Now, it's back to the drawing board. To achieve our objectives, we'll have to battle it out case by case."

Thus, the current year at the Supreme Court has seen a surprising trend - five major cases of workplace discrimination decided by solid margins in favor of employees' rights. We will watch with great interest to see if this trend continues in the years ahead.

Joyce S. Anderson is the author of "Courage in High Heels," "Flaw in the Tapestry," "If Winter Comes" and "The Mermaids Singing." She can be reached at JSAWrite@aol.com.