Legal News

Three Decisions That Employers And Employees Cannot Afford to Ignore

By Brian Harris

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter or as in any way creating an attorney/client relationship with the author and/or Dilworth Paxson LLP.]

Over the past several weeks, the 3rd U.S. Court of Appeals and the U.S. Supreme Court have decided several cases that have drastically affected the employment landscape. In case you missed them, brief summaries and some practical tips follow.

(I would have posted about these cases sooner, but I became a first-time dad in June, so I?m cutting myself a little slack)

Ricci v. DeStefano

129 S. Ct. 1694 (2009).

Holding: Under Title VII, before an employer can engage in intentional discrimination in order to avoid or remedy an unintentional, disparate impact, the employer must have a ?strong basis in evidence? to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

What Ricci means for employers: For an employer who utilizes written skills tests for its employees, now is the time to review test questions to determine whether they accurately test for skills needed to perform essential job tasks. Otherwise, the employer may want to consider scrapping its written tests altogether.

What may get lost in this decision: We may not be far away from a case testing the constitutionality of Title VII disparate impact claims.

Gross v. FBL Financial Services, Inc.

129 S. Ct. 2343 (2009).

Holding: A plaintiff bringing a disparate-treatment claim under the Age Discrimination in Employment Act, or ADEA, must prove, by a preponderance of the evidence, that age was the ?but-for? cause of the challenged adverse employment action.  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age.

What Gross means for employees: It does not matter that a plaintiff has produced some evidence that age was a motivating factor in an adverse employment decision. So, without a smoking gun, good luck prevailing on an ADEA claim. You?ll need it.

What may get lost in this decision: The Supreme Court reaffirms that where a statute is silent as to the burden of persuasion in a civil action, it rests with the plaintiff.

Huston v. Procter & Gamble Paper Products Corp.

568 F.3d 100 (3d Cir. 2009)

Holding: An employee's knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer where the employee to whom a claim of sexual harassment is reported: has the authority to act on behalf of the employer to stop the harassment; and is specifically employed to report or respond to sexual harassment (e.g., a manager).

What Huston means for employers: Educate both supervisors and the rank-and-file as to which individuals are authorized to receive and deal with claims of sexual harassment. Now is also the time to revise job descriptions to specifically address who is authorized to address such claims.

What Huston means for employees: Always report claims of sexual harassment to Human Resources and anyone else identified by an employer as authorized to receive claims of sexual harassment. Any questions? Check your employee handbook and talk to HR.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

Full post as published by The Legal Intelligencer Blog on September 09, 2009 (boomark / email).