Discrimination Cases On The Supreme Court Docket

Judy Olian

(Judy Olian is dean of Penn State's Smeal College of Business and host of "About Business," a monthly call-in show airing at 7 p.m. on the first Tuesday of each month on WPSX-TV, WPSU-FM, and at http://wpsu.psu.edu/abusiness/index.html.)

The most recent term of the Supreme Court has included several interesting discrimination-related cases. Three primary issues were addressed in these cases: reverse discrimination with regard to age, whether evidence of disparate impact is sufficient to prove age or disability discrimination, and whether people who voluntarily resign for alleged harassment are still eligible for monetary damages. Depending on the case outcomes, employees may be more successful in sustaining discrimination claims against their employers.

A claim of reverse discrimination was at the heart of General Dynamics Land Systems v. Cline . Operating under a collective bargaining agreement with a union, Land Systems—a producer of amphibious combat systems—eliminated health benefits for future retirees, except for current employees over the age of 50 who were grandfathered into the program. In response, workers between the ages of 40 and 50 filed suit because of the perceived preferential treatment of older workers. They claimed the firm was not adhering to the Age Discrimination in Employment Act (ADEA), which protects workers 40 and over.

The Supreme Court had little sympathy for the claim, stating that there was nothing in the ADEA that prevents employers from favoring older employees relative to those who are younger, even if the younger workers qualify for coverage under the ADEA.

Another ADEA-related case is slated for oral arguments before the Supreme Court in the fall. In Smith v. Jackson, Mississippi , police officers and dispatchers over the age of 40 claimed that those with five or fewer years of tenure—employees under 40—received larger average pay increases.

The nature of the proof offered in this case is based on statistical results—disparate impact—rather than on overt discriminatory treatment. Disparate impact is a standard basis for establishing discrimination under Title VII of the Civil Rights Act, a lower legal hurdle from the perspective of plaintiffs. However, to date under the ADEA, the only acceptable form of evidence is disparate treatment or proof of overt discrimination against older workers. If a disparate impact argument is accepted under the ADEA, it will be sufficient to produce statistical evidence of less favorable outcomes for older workers regardless of employer intent, opening new grounds for challenges under the ADEA.

Another case decided in the Court's recent term— Raytheon Company v. Joel Hernandez —pertains to the Americans with Disability Act (ADA). Hernandez tested positive for cocaine, admitted that his behavior violated company rules, and was forced to resign. He completed rehabilitation and received letters from his pastor and Alcoholics Anonymous counselor attesting to his recovery. More than two years later he reapplied for employment at Raytheon. According to Raytheon, the HR officer was unaware of Hernandez' former drug addiction problem but rejected him for reemployment since the company had a policy against rehiring past employees terminated for workplace misconduct. The company alleged that it was making the decision on the basis of a neutral, no-rehire policy that applies to all ex-employees.

The Supreme Court agreed with the company, allowing that Raytheon could legitimately refuse to rehire Hernandez provided the decision was based on a non-discriminatory employment policy, even though it had the effect of disparate impact on Hernandez. The court remanded the case to the appellate court to determine whether the reasoning offered by Raytheon was merely a pretext for illegal discrimination based on the plaintiff's prior drug addiction. Accordingly, the Court is indicating in Raytheon that ADA claims must be made using disparate treatment evidence, but not disparate impact.

Finally in a case that will be decided later this term— Pennsylvania State Police v. Suders —the court will determine whether a person can sue under Title VII even if she resigns voluntarily from employment. Suders, a female police officer, claims to have endured unbearable sexual harassment from her direct supervisors in the Pennsylvania State Police. She complained about the alleged harassment, to no avail. She felt she had no options other than to resign. The law labels this "constructive discharge." The ACLU has joined a number of civil rights groups alleging that constructive discharge under such intolerable circumstances is deserving of compensatory damages, as if Suders was wrongfully terminated by her employer.

In certain instances, employees who have been wrongfully treated experience an additional injustice, having to remove themselves from the discriminatory or hostile work situation. They forfeit income, a severance settlement from their employer, and the opportunity to obtain references for subsequent employment. In Pennsylvania State Police v. Suders , the Supreme Court could provide victims of such injustice a just remedy.

Judy Olian is dean of Penn State's Smeal College of Business and a leading expert in strategic human resources management.

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