The Seventh Circuit creates a split with the Eleventh Circuit, holding that job applicants may bring claims for disparate impact under the ADEA under 29 U.S.C. § 623(a)(2). The panel majority allows a challenge to an employer's classification of an in-house Senior Counsel position as "3 to 7 years (no more than 7 years) of relevant legal experience."
The Third Circuit, declaring a split with several other courts, holds that an ADEA disparate-impact case may allege discrimination against a subset of the protected group, here employees 50 and over. Prior decisions had held that such claims could be based only on the entire protected group - age 40 and over - but the Third Circuit panel holds that "their reasoning relies primarily on policy arguments that we do not find persuasive."
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
Here's another case involving a joint-employer relationship between a staffing agency and one of its clients. The Fifth Circuit reverses summary judgment, holding that There was a genuine dispute about whether the staffing agency should have known that the client asked it to reassign an employee for age-biased reasons.
The end of the year often brings a haul of decisions, when the courts of appeal clear their dockets for year's-end. Here's a short, to-the-point decision, reversing summary judgment on an ADEA and ERISA case where the district court judge misapprehended a controlling Supreme Court decision.
The Eleventh Circuit holds (2-1) that hiring guidelines that target employees a few years out of college, or that discourage hiring of employees with too much experience, may violate the ADEA if they have a disparate impact on hiring employees age 40 and over. The majority also holds that equitable tolling of the limitations period for filing an EEOC charge does not necessarily depend on concealment or fraud by the employer.
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
The Fifth Circuit reverses its beginning-of-the-year, 2-1 decision in Wooten, now holding (3-0) that the plaintiff's complaint - while "admittedly light on factual details" - was sufficient under Federal Rule of Civil Procedure 8 to state a claim of discrimination and retaliation under the ADEA. Thus, the complaint was sufficient to support entry of default judgment against a non-appearing employer.
Even imperfect employees, we are reminded, are protected by anti-discrimination laws. The First Circuit holds that the district court too quickly credited the employer's reliance on the plaintiff's disciplinary history when it fired him, without looking behind the record to see if the hotel genuinely believed that the offenses were serious enough to warrant termination.
The Eighth Circuit reverses summary judgment in this ADEA and Minnesota Human Rights Act case, holding that a jury could find that the city's failure to promote the city's lieutenant to Chief of Police was motivated by age. Importantly, it notes that an employer that assumes that people who are retirement-eligible are "uncommitted" to a promotion are skating on thin-ice.