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Section Seven: Public Employment Five Types of public employees: Civil service: merit principle Unionized: contract-based Special employees: variable Elected officials: constitutions and specific laws Political Appointees: will of appointers, specific laws Public Employment: First Amendment rights Requirements of Political Affiliation are generally illegal except for higher policymaking appointees: Rutan v. Illinois (1990): struck down system that froze all moves within Illinois employment system and where promotions and transfers were considered with political criteria - Note Scalia dissent Public Employment: First Amendment rights: SPEECH Pickering v. Board of Education (1968) - no damage to organization - “public significance” of speech Connick v. Meyers (1983) public significance of speech balanced with general preference of deference to managerial discretion Garcetti v. Ceballos (2006): internal memos criticizing use of affidavit for search warrant led to retribution and transfer Kennedy distinguished between speech that is “pursuant to their official duties” and that which contributes to “civic discourse” First category not protected by First Amendment: memo - Second category is: addressing public audience Public Employment: Constitutional Issues Right to not speak: 5th amendment - but public officials are expected to cooperate in investigations or they can be fired Public Employment: Constitutional Issues Fourth Amendment: Search and Seizure O’Connor v. Ortega (1987):office privacy case involving director in state psychiatric program at Napa State Hospital - case by case analysis - “reasonable expectation of privacy” in offices - special nature of public employees makes “probable cause” standard impracticable: “reasonableness” can be standard - thumb on side of employers in scale National Treasury Employees Union v. Von Raab (1989): “special needs” may make probable cause impracticable Public Employment Due Process Concerns Property interests: - Hale v. Walsh (1987) - Board of Regents v. Roth (1972) Public Employment: Due Process If property rights are established, Employer must show firing: - followed required procedures - was not for exercise of rights - same decision would have been made despite exercise of rights - speech or association is not protected or of public importance Public Employees: Due Process Concerns Liberty interests: Constitutional liberty interest can be created by linking firing to speech: Hale v Walsh (1987) Liberty interest linked to reputation/good name: Bishop v. Wood (1976): reasons not made public and did not affect liberty relating to reputation Safest to not give reasons when firing those without property rights Public Employment: Due Process Dismissals allowed for almost any non-elected employee for: cause: specific actions of malfeasance, nonfeasance. Violations of rules of employment – may require due process - Financial exigency or progra.

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Section Seven: Public Employment Five Types of public employees: Civil service: merit principle Unionized: contract-based Special employees: variable Elected officials: constitutions and specific laws Political Appointees: will of appointers, specific laws Public Employment: First Amendment rights Requirements of Political Affiliation are generally illegal except for higher policymaking appointees: Rutan v. Illinois (1990): struck down system that froze all moves within Illinois employment system and where promotions and transfers were considered with political criteria - Note Scalia dissent Public Employment: First Amendment rights: SPEECH Pickering v. Board of Education (1968) - no damage to organization - “public significance” of speech Connick v. Meyers (1983) public significance of speech balanced with general preference of deference to managerial discretion
Garcetti v. Ceballos (2006): internal memos criticizing use of affidavit for search warrant led to retribution and transfer Kennedy distinguished between speech that is “pursuant to their official duties” and that which contributes to “civic discourse” First category not protected by First Amendment: memo - Second category is: addressing public audience Public Employment: Constitutional Issues Right to not speak: 5th amendment - but public officials are expected to cooperate in investigations or they can be fired Public Employment: Constitutional Issues Fourth Amendment: Search and Seizure O’Connor v. Ortega (1987):office privacy case involving director in state psychiatric program at Napa State Hospital - case by case analysis - “reasonable expectation of privacy” in offices - special nature of public employees makes “probable cause” standard impracticable: “reasonableness” can be standard - thumb on side of employers in scale National Treasury Employees Union v. Von Raab (1989): “special needs” may make probable cause impracticable
Public Employment Due Process Concerns Property interests: - Hale v. Walsh (1987) - Board of Regents v. Roth (1972) Public Employment: Due Process If property rights are established, Employer must show firing: - followed required procedures - was not for exercise of rights - same decision would have been made despite exercise of rights - speech or association is not protected or of public importance Public Employees: Due Process Concerns Liberty interests: Constitutional liberty interest can be created by linking firing to speech: Hale v Walsh (1987) Liberty interest linked to reputation/good name: Bishop v. Wood (1976): reasons not made public and did not affect liberty relating to reputation Safest to not give reasons when firing those without property
rights Public Employment: Due Process Dismissals allowed for almost any non-elected employee for: cause: specific actions of malfeasance, nonfeasance. Violations of rules of employment – may require due process - Financial exigency or programmatic change(subject to contractual review – but may not require hearing since not action against the person) Unions and Public Employees Collective Bargaining and Public Unions: Janus v AFSCME (2018) challenged fair share dues. Union contracts cannot require “fair share” or other union dues for employment. Violates free speech clause. - Assumed it will make a major impact on union membership over time – the effects have not been as dramatic and conservatives hoped – lower numbers, but more union activism State law still determines major elements of collective bargaining, including right for public workers to strike.
7 Regulation of Public Sector Collective Bargaining in the States 5 CHART 1 Legality of Collective Bargaining for Select Public-Sector Workers Firefighters Police Teachers Illegal North Carolina South Carolina Tennessee Virginia Georgia North Carolina South Carolina Tennessee
Virginia Georgia North Carolina South Carolina Texas Virginia Legal Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota
Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Wyoming Alaska Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois
Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Alabama Alaska
Arkansas California Colorado Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania
Rhode Island South Dakota Tennessee Utah Vermont Washington West Virginia Wisconsin Wyoming No Statute/ Case Law Alabama Mississippi Alabama Colorado Mississippi Wyoming Arizona Source: Authors’ analysis. See Appendix for details. Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin. In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not the requirement) to bargain collectively. Many states have legislation that covers all public employees
in the state and establishes both the right to organize and to bargain collectively. In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal environment where no set statutes or existing case law governs collective bargaining at the state level. As a result, collective bargaining is permissible at the state level, but the actual legality of collective bargaining depends on local laws. Regulation of Public Sector Collective Bargaining in the States 5 CHART 1 Legality of Collective Bargaining for Select Public-Sector Workers Firefighters Police Teachers Illegal North Carolina South Carolina Tennessee Virginia Georgia North Carolina South Carolina Tennessee Virginia
Georgia North Carolina South Carolina Texas Virginia Legal Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada
New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Wyoming Alaska Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana
Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Alabama Alaska Arkansas California Colorado Connecticut Delaware District of Columbia
Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Utah Vermont Washington West Virginia Wisconsin
Wyoming No Statute/ Case Law Alabama Mississippi Alabama Colorado Mississippi Wyoming Arizona Source: Authors’ analysis. See Appendix for details. Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin. In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not the requirement) to bargain collectively. Many states have legislation that covers all public employees in the state and establishes both the right to organize and to bargain collectively. In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal environment where no set statutes or existing case law governs collective bargaining at the state level. As a result, collective bargaining is permissible at the state level, but the actual legality of
collective bargaining depends on local laws. March 2014 * Milla Sanes is a Program Assistant at the Center for Economic and Policy Research, in Washington D.C. John Schmitt is a Senior Economist at CEPR. Regulation of Public Sector Collective Bargaining in the States By Milla Sanes and John Schmitt* Center for Economic and Policy Research 1611 Connecticut Ave. NW Suite 400 Washington, DC 20009
tel: 202-293-5380 fax: 202-588-1356 www.cepr.net http://www.cepr.net/ Regulation of Public Sector Collective Bargaining in the States 8 A sizeable number of states have no state law or administrative code that addresses the issue of negotiations over wages and benefits. Where there is no regulation, the practice can be deemed “permissible,” determined on a more case-by-case basis, or regulated at local levels. Right to Strike CHART 3 Legality of Striking for Select Public-Sector Workers Firefighters Police Teachers Illegal Alabama Alaska Arizona Arkansas
California Colorado Connecticut Delaware District of Columbia Florida Georgia Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Pennsylvania Rhode Island
South Dakota Tennessee Texas Utah Vermont Virginia Washington Wisconsin Alabama Alaska Arizona Vermont Arkansas California Connecticut Delaware District of Columbia Florida Georgia Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana
Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas Virginia Washington Wisconsin Alabama Arizona Arkansas Connecticut Delaware District of Columbia Florida Georgia Idaho Indiana Iowa Kansas Kentucky Maine Maryland Massachusetts
Michigan Mississippi Missouri Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Rhode Island South Dakota Tennessee Texas Virginia Washington West Virginia Wisconsin Legal Hawaii Ohio Hawaii Ohio Alaska California Colorado Hawaii Illinois Louisiana
Minnesota Montana Ohio Oregon Pennsylvania Vermont No Statute/ Case Law South Carolina West Virginia Wyoming Colorado Idaho South Carolina Utah West Virginia Wyoming South Carolina Utah Wyoming Source: Authors’ analysis. See Appendix for details. 14th Amendment Equal Protection: Discrimination
Various Criteria: Basic assumption that government acted lawfully: victim has burden of proof, common law - “simple rationality test” - typical merit requirements “Suspect classifications”: race, alien status, religion brings “strict scrutiny”: government must have at least a “compelling interest”: constitutional law Middle ground: reasonableness: gender, age, minor interests, disabilities: statutory law - Lily Ledbetter Fair Pay Act of 2009: pay discrimination due to gender can be contested long after initial pay decision was made if lower pay is ongoing 1 Public Employment: Equal protection de jure v. de facto discrimination 2 Public Employment: Equal protection Evolving race criteria: Adarand v. Pena (1995): compelling interest needed for affirmative action. Narrowly tailored remedy expected Ricci v. DeStefano (2009): City of New Haven violated Title
VII by refusing to certify test results when no black firefighters passed. Cannot reject open fair process solely on disparate results Comcast v. National Association of African-American Owned Media(2020) : “But for cause”: 3 Public Employment: Equal protection Equal Protection in College admission indicates court’s continual evolution: Schuette v. Coalition to Defend Affirmative Action (2014) States can ban consideration of race in college admissions or other public programs But already the court had banned any form of affirmative action that created any sort of quotas or operated mechanically. Fisher v. University of Texas at Austin(2016): left basic law race-based preferences inherently suspect but legal if schools -- and by extension, employers -- provide strong evidence their affirmative-action programs are narrowly tailored to achieve the goal of diversity. 4 Recent notable movement on discrimination(not administrative law) Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012) Courts cannot tell religious organizations who can they can fire
as ministers: “ministerial exception” In hiring and firing of Sunday school teacher, first amendment trumps employment laws The Hobby Lobby case (2014): cannot require private employees to provide birth control 5 Public Employment: Equal protection: Gender Title VI of 1964 Civil Rights Act: forbids discrimination based on race, sex, religion, and national origin Title VII: applies Title VI to state and local governments - Retirement programs cannot discriminate 6 Public Employment: Equal protection: Gender Feeney v. Personnel Administrator of Massachusetts (1979) - veteran’s preference challenge – public interest in rewarding veterans outweighed gender impact Supreme Court has struck down discrimination of gays/lesbians if there was no public purpose United States v. Windsor (2013) : Federal Defense of Marriage Act overturned
7 Employment: Equal protection: Gender Harassment: Harris v. Forklift Systems (1993): “hostile environment” may constitute discrimination Pennsylvania State Police v. Suders (2004): were conditions so intolerable that reasonable person would feel forced to quit? “Conditional discharge” could constitute a employer action that qualifies for Title VII standing 8 Public Employment: Equal protection: Gender Nevada Department of Human Resources v. Hibbs (2003) - Rehnquist, 6-3 State must allow mothers and fathers to take leave under the Family and Medical Leave Act Documented history of workplace sex discrimination 9 Public Employment: Equal protection: Age Age discrimination in Employment Act (1967) Kimel v. Florida Board of Regents (2000): states immune from suits in federal courts, except in special case of court participants 11th Amendment
- burden on private or non-federal gov’t employee to prove firing based primarily on age: JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. (2009) complicated in cutbacks, contracting Babb v. Wilkie (2020): Federal employees simply need to show discrimination was present, not standard of “but for” 10 Public Employment: Equal protection: Disabilities Americans With Disabilities Act (1990) - protects broadly, over 43 millions possibly protected - employers must make “reasonable accommodations”, but can avoid actions that entail “undue hardship” - falls under Kimel rule for state governments: Alabama v. Garrett (2001) 11 The NCSL (National Conference of State Legislatures)Blog “SCOTUS: Race Must Be 'But For' Cause in Employment Discrimination Suits By Lisa Soronen In Comcast v. National Association of African-American Owned Media the U.S. Supreme Court held unanimously that a plaintiff who sues under 42 U.S.C. §1981 must plead and prove that race was the but-for cause of his or her injury. This case is particularly relevant to states and local governments as employers. The but-for causation is a standard favorable to
employers. Section 1981, enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” This case arose in the contracting context. African American entrepreneur Byron Allen, owner of Entertainment Studios Network (ESN), sought to have Comcast carry its channels. Comcast refused and ESN sued under §1981. ESN didn’t dispute that Comcast offered legitimate business reasons for not carryings its channels, but claimed these reasons were pretextual. The 9th Circuit held that a §1981 plaintiff only has to show that race discrimination played “some role” in the defendant’s decision-making process, not that it was the “but-for” cause of the defendant’s conduct. Under this “more forgiving” causation standard, ESN’s lawsuit could proceed. The Supreme Court rejected the 9th Circuit’s view and held that to win a §1981 case the plaintiff must plead and prove but-for causation. Justice Neil Gorsuch, writing for the court, noted that it is “textbook tort law” that plaintiffs must prove but-for causation. The court rejected ESN’s argument that §1981 creates an exception to the general rule. According to the court: “While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee that each person is entitled to the ‘same right . . . as is enjoyed by white citizens’ directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation.” ESN encouraged the court to adopt the “motivating factor” causation test from Title VII, which also prohibits race discrimination in employment. This standard is more favorable to employees than the but-for causation standard. The court
declined, noting the differences between the statutes. “Title VII was enacted in 1964; this court recognized its motivating factor test in 1989; and Congress replaced that rule with its own version two years later. Meanwhile, §1981 dates back to 1866 and has never said a word about motivating factors. So we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard.” Justice Ruth Bader Ginsburg wrote a concurring opinion noting that the court didn’t decide whether §1981 applies to earlier stages of the contract-formation process because this question wasn’t presented in this case. She stated that it must apply, otherwise, employers could, for example, reimburse white interviewees but not black interviewees or even refuse to consider black applicants. States and local governments, like private employers, can be sued for employment discrimination under Section 1981. The 9th Circuit decision had numerous downsides for employers. First, it is easier for employees to prove that discrimination was one of a number of factors in an employment decision rather than the sole factor. Second, if the Supreme Court had agreed with the 9th Circuit, Section 1981 will be an even more attractive vehicle to sue employers. Compared to Title VII, it has a longer statute of limitations, no damages cap, and presumably no defense to damages where the employer would have made the same decision regardless of race. Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues. _____________________________________________________ ____ Babb v. Wilkie (2020) Supreme Court ruling will make it easier for feds to prove age discrimination
By Nicole Ogrysko | @nogryskoWFED April 7, 2020 4:38 pm Federal News Network https://federalnewsnetwork.com/workforce- rightsgovernance/2020/04/supreme-court-ruling-will-make-it- easier-for-feds-to-prove-age-discrimination/ Federal employees may have an easier time proving age discrimination, thanks to a new ruling from the Supreme Court. In an 8-1 ruling, the Supreme Court on Monday said federal employees have a lower burden to prove differential treatment under the Age Discrimination in Employment Act (ADEA) compared to their counterparts in the private sector and state and local governments. The ADEA protects certain employees and job applicants who are 40 years and older from age-based discrimination in hiring, firing, promotion or demotion and other conditions of employment. The case before the Supreme Court came from Norris Babb, a clinical pharmacist at the Department Veterans Affairs who had sued the agency back in 2014. Babb said she was denied a promotion, holiday pay and training and development opportunities, in part, because of her age. According to the VA’s arguments, Babb could only obtain relief under the ADEA if her age was a “but-for cause” of the personnel action, meaning she’d have to prove she would have otherwise received the promotion or training if her age wasn’t taken into account. “This interpretation, the government contends, follows both from the meaning of the statutory text and from the ‘default rule’ that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct,” Justice Samuel Alito, who delivered the court’s opinion, said in Monday’s ruling. Babb, however, argued the ADEA prevents an agency from
using age at any point during the personnel decision-making process. The court debated the correct interpretation and came to a relatively easy decision. Under the ADEA, the court said, federal employees need not prove age as a “but-for cause” for a personnel action itself. Instead, they must simply prove they received differential treatment due to their age during the personnel decision-making process. “The statute does not say that ‘it is unlawful to take personnel actions that are based on age;” it says that ‘personnel actions… shall be made free from any discrimination based on age,'” the court’s opinion reads. “As a result, 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,” Put another way, the court contends federal employees must prove their age was the reason for differential treatment that led to a personnel action, but not the reason for the firing, suspension, promotion or decision itself. Alito uses an example to illustrate the argument, where an agency must decide whether to promote 35-year-old “employee A,” or 55-year-old “employee B.” Under a hypothetical policy, an agency will first rank these two employees up for promotion using a numerical score based on non-discriminatory factors. Using these factors, “employee A” receives a score of 90, while “employee B” earns a score of 85. Next, the agency will dock five points from employees over the age of 40 and will give the promotion to the employee with the most points. Under this hypothetical scenario, “employee B,” the 55-year- old, has a final score of 80, while “employee A,” the 35-year- old, has a score of 90. “Employee A,” gets the promotion. “This decision is not ‘made’ ‘free from any discrimination’ because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not),” Alito said. “And this discrimination was ‘based on age’ because the five points would not have been taken away were it not for employee B’s age.”
“Employee A” would have won the promotion even if the agency hadn’t considered the ages of both workers and hadn’t docked points from the older employee’s score, Alito acknowledged. But the agency still claims liability under the ADEA, the court argued. The ADEA, which Congress passed into law in 1967, originally applied only to private sector employees. Congress expanded the law’s scope back in 1974 to cover, state, local and federal governments. Lawmakers at the time simply added state and local government to the definition describing an “employer” under the ADEA. But Congress, however, added separate language outlining a distinct statutory scheme for the federal sector, a point that the Supreme Court said is notable. “We are not persuaded by the argument that it is anomalous to hold the federal government to a stricter standard than private employers or state and local governments,” Alito said. “That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.” This ADEA language ultimately gives federal employees a lower burden of proof in age discrimination cases compared to their private sector counterparts. The ADEA, however, does set tougher standards for federal employees seeking reinstatement, back pay, damages or some other relief related to a firing, demotion, suspension or other personnel action. These employees must, in fact, show age discrimination was a “but-for cause” of the personnel action, the court said. “Plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief,” Alito said. Only Justice Clarence Thomas, who said he interpreted the ADEA language differently, disagreed with the court’s opinion. Simply requiring federal employees to prove age discrimination
“taint[ed] the making of a personnel action, even if the agency would have reached the same outcome absent any age-based discrimination,” is an “unworkable” rule, he argued. Essays should be 4-6 double-spaced pages. They should be written using only lectures and reading materials provided on Moodle. Identify the sources for specific facts, concepts, and quotes by simple parenthetical references. Since you are only to use class materials, the instructor should easily be able to identify the source. For the essays, you cannot “cut and paste”. Use the materials from class only and be sure to provide a simple reference, such as (Powerpoint) or (Library of Congress). Answer all parts of the chosen question. Demonstrate that you have reviewed and understand any relevant information in that section’s materials. When useful to the answer, incorporate details such as case names, author’s names, facts, and particularly specific terms or jargon important to that subject. The essays should be thematic. Sentences should be complete. Always address each part of the question. Always include specific details, terms, and cases that properly fit into the analysis. Congratulations for starting your new job in Human Resources today here at Western Oregon University! We are all glad to have you on board because of your special knowledge of the law of public employment. The president, Dr. Wanda Allover, has a back log of issues she hopes you will help her resolve.
Her is her list. She is looking forward to getting your information and advice by May 27. 1. We need to be more discriminating. We want the “right sort of people”. The president likes “bright, well-prepared, energetic people who are comfortable to be with and who project the image of an vibrant mainstream organization.” Please explain to the Dr. Allover the way the courts view “equal protection” and what is allowable employment discrimination. In what situation (or based on what characteristics) can you most easily discriminate and in what circumstances is discrimination most difficult to legally justify? (What tests apply to discrimination based on different personal traits, such as “strict scrutiny”.) What grounds are between the two extremes? 2. Western Oregon has some problem employees we really want to dump. Some are long-term administrative staff, some are troublesome unionized faculty, and there is this really new person who seems “uppity”. Can these folks ever be fired? If we can fire them, how can we do it legally? 3. President Allover is a person with curiosity. She also wants to know what you think is the single best thing about the broad public employments system, and what you think is the worst thing about it. PENNSYLVANIA STATE POLICE V. SUDERS (03-95) 542 U.S. 129 (2004) 325 F.3d 432, vacated and remanded. Syllabus Opinion [ Ginsburg ] Dissent [ Thomas ]
HTML versionPDF version HTML versionPDF version HTML versionPDF version Syllabus : PENNSYLVANIA STATE POLICE v. SUDERSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 03—95. Argued March 31, 2004–Decided June 14, 2004 In March 1998, the Pennsylvania State Police (PSP) hired plaintiff-respondent Suders to work as a police communications operator for the McConnellsburg barracks, where her male supervisors subjected her to a continuous barrage of sexual harassment. In June 1998, Suders told the PSP’s Equal Employment Opportunity Officer, Virginia Smith-Elliott, that she might need help, but neither woman followed up on the conversation. Two months later, Suders contacted Smith-Elliott again, this time reporting that she was being harassed and was afraid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Two days later, Suders’ supervisors arrested her for theft of her own computer- skills exam papers. Suders had removed the papers after concluding that the supervisors had falsely reported that she had repeatedly failed, when in fact, the exams were never forwarded for grading. Suders then resigned from the force and sued the PSP, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964. The District Court granted the PSP’s motion for summary judgment. Although recognizing that Suders’ testimony would permit a fact trier to conclude that her supervisors had created a hostile work environment, the court nevertheless held that the
PSP was not vicariously liable for the supervisors’ conduct. In support of its decision, the District Court referred to Faragher v. Boca Raton,524 U.S. 775, 808. In that case, and in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, decided the same day, this Court held that an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” 524 U.S., at 765. But when no such tangible action is taken, both decisions also hold, the employer may raise an affirmative defense to liability. To prevail on the basis of the defense, the employer must prove that “(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that (b) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ibid. Suders’ hostile work environment claim was untenable as a matter of law, the District Court stated, because she unreasonably failed to avail herself of the PSP’s internal antiharassment procedures. The court did not address Suders’ constructive discharge claim. The Third Circuit reversed and remanded the case for trial. The appeals court disagreed with the District Court in two key respects: First, even if the PSP could assert the Ellerth/Faragher affirmative defense, genuine issues of material fact existed about the effectiveness of the PSP’s program to address sexual harassment claims; second, Suders had stated a claim of constructive discharge due to hostile work environment. The appeals court ruled that a constructive discharge, if proved, constitutes a tangible employment action that renders an employer strictly liable and precludes recourse to the Ellerth/Faragher affirmative defense. Held: To establish “constructive discharge,” a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified
as a fitting response. An employer may assert the Ellerth/Faragher affirmative defense to such a claim unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. Pp. 9—21. (a) Under the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign? This doctrine was developed by the National Labor Relations Board (NLRB) in the 1930’s, and was solidly established in the lower federal courts by 1964, when Title VII was enacted. The Court agrees that Title VII encompasses employer liability for a constructive discharge. Pp. 9—11. (b) This case concerns employer liability for one subset of constructive discharge claims: those resulting from sexual harassment, or “hostile work environment,” attributable to a supervisor. The Court’s starting point is the Ellerth/Faragher framework. Those decisions delineate two categories of sexual harassment claims: (1) those alleging a “tangible employment action,” for which employers may be held strictly liable; and (2) those asserting no tangible employment action, in which case employers may assert the affirmative defense. Ellerth, 524 U.S., at 765. The key issues here are: Into which Ellerth/Faragher category hostile-environment constructive discharge claims fall, and what proof burdens the parties bear in such cases. In Ellerth and Faragher, the Court invoked the principle drawn from agency law that an employer is liable for the acts of its agent when the agent is “aided in accomplishing the tort by the existence of the agency relation.” Id., at 758. When a supervisor
engaged in harassing conduct takes a tangible employment action against a subordinate, the Court reasoned, it is beyond question that the supervisor is aided by the agency relation. A tangible employment action, the Court stated, is an “official act of the enterprise” and “fall[s] within the special province of the supervisor.” Id., at 762. In contrast, when supervisor harassment does not culminate in a tangible employment action, Ellerth and Faragher explained, it is less obvious that the agency relation is the driving force. The Court also recognized that a liability limitation linked to an employer’s effort to install effective grievance procedures and an employee’s effort to report harassing behavior would advance Title VII’s conciliation and deterrence purposes. Id., at 764. Accordingly, the Court held that when no tangible employment action is taken, an employer may defeat vicarious liability for supervisor harassment by establishing the two-part affirmative defense. That defense, the Court observed, accommodates the “avoidable consequences” doctrine Title VII “borrows from tort law,” ibid., by requiring plaintiffs reasonably to stave off avoidable harm. Ellerth and Faragher clarify, however, that the defending employer bears the burden to prove that the plaintiff-employee unreasonably failed to avoid or reduce harm. Faragher, at 807. Pp. 11—15. (1) The constructive discharge at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of harassment or hostility to be actionable, the offending behavior must be sufficiently severe or pervasive to alter the victim’s employment conditions and create an abusive working environment. Meritor Savings Bank, FSB v. Vinson,477 U.S. 57, 67. A hostile-environment constructive discharge claim entails something more: working conditions so intolerable that a reasonable person would have felt compelled to resign. Suders’ claim is of the same genre as the claims analyzed in Ellerth and Faragher. Essentially, Suders presents a “worse case” harassment scenario, harassment ratcheted up to the breaking
point. Like the harassment considered in Ellerth and Faragher, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official company act, a constructive discharge may or may not involve official action. When it does not, the extent to which the agency relationship aided the supervisor’s misconduct is less certain, and that uncertainty justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable. The Third Circuit erred in drawing the line differently. Pp. 15—19. (2) The Third Circuit qualified its holding that a constructive discharge itself constitutes a tangible employment action under Ellerth and Faragher: The affirmative defense delineated in those cases, the court noted, might be imported into the anterior issue whether the employee’s decision to resign was reasonable under the circumstances. However, the appeals court left open when and how the Ellerth/Faragher considerations would be brought home to the fact trier. The Court of Appeals did not address specifically the allocation of pleading and persuasion burdens, but simply relied on “the wisdom and expertise of trial judges to exercise their gatekeeping authority when assessing whether all, some, or none of the evidence relating to employers’ antiharassment programs and to employees’ exploration of alternative avenues warrants introduction at trial.” 325 F.3d, at 463. There is no cause for leaving the district courts thus unguided. Following Ellerth and Faragher, the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. Pp. 19—21. (c) Although the Third Circuit correctly ruled that the case, in its current posture, presents genuine issues of material fact
concerning Suders’ hostile work environment and constructive discharge claims, that court erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. P. 21. 325 F.3d 432, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion. Excerpts from Majority Opinion by Justice Ginsburg: “…. To establish hostile work environment, plaintiffs like Suders must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [their] employment.” Meritor Savings Bank, FSB v. Vinson,477 U.S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc.,510 U.S. 17, 22 (1993) …. Although this Court has not had occasion earlier to hold that a claim for constructive discharge lies under Title VII, we have recognized constructive discharge in the labor-law context, see Sure&nbhyph;Tan, Inc. v. NLRB,467 U.S. 883, 894 (1984) (NLRB may find employer engaged in unfair labor practice “when, for the purpose of discouraging union activity, … [the employer] creates working conditions so intolerable that the employee has no option but to resign–a so-called ‘constructive discharge.’ ”). Furthermore, we have stated that “Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment.” Ellerth, 524 U.S., at 752. See also Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 64 (“The phrase ‘terms, conditions, or privileges of employment’ [in Title VII] evinces a congressional intent to strike at the
entire spectrum of disparate treatment of men and women in employment.” (some internal quotation marks omitted)). We agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge. …. The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, we reiterate, see supra, at 1, the offending behavior “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor, 477 U.S., at 67 (internal quotation marks and brackets omitted). A hostile- environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e.g.,Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (CA8 1999) (“[A]lthough there may be evidence from which a jury could find sexual harassment, … the facts alleged [for constructive discharge must be] … so intolerable that a reasonable person would be forced to quit.”); Perry v. HarrisChernin, Inc., 126 F.3d 1010, 1015 (CA7 1997) (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”).8….” PAGE 1 This case shows the complexity of affirmative action law, and the court’s consistently movement regarding this issue. Basically New Haven justified its rejections of the outcome of its testing process by saying the disparate impact (the fact that no African American applicants emerged successfully) would
subject it to lawsuits for discrimination under Title VII of the Civil Rights Bill. The US Supreme Court agreed with the white challengers that it was actually the city’s rejection of the test results that constituted a wrongful “disparate impact”, particularly since it was clearly race-based, while the test outcome reflected an objective effort to determine who was best qualified for the job. “Disparate treatment” means distinct groups are subject to different evaluation, opportunities, or services. “Disparate outcomes” means distinct groups experience different results when participating in a process. In sum, a government “affirmative action” seeking to enhance to increase minority participants in the government workforce, share of contract, or in higher education: 1) must be justified with a “compelling interest”; 2) must be narrowly tailored to correct that specific problem; and 3) cannot involve quotas or be applied in a mechanical manner that guarantees a share of the benefit for one racial group over another. SUPREME COURT OF THE UNITED STATES RICCI et al. v. DeSTEFANO et al. certiorari to the united states court of appeals for the second circuit No. 07–1428. Argued April 22, 2009—Decided June 29, 2009 New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated
against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed. Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34. (a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e– 2(k)(1)(A)(ii) and (C). Pp. 17–19. (b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying 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. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results becausethe higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses
what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in- evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment- related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in- evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26. (c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34. (i) The racial adverse impact in this litigation was
significant, and petitioners do not dispute that the City was faced with a prima faciecase of disparate-impact liability. The problem for respondents is that such a prima facie case— essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e– 2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28. (ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29. (iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine
whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race- based adjustment of test results, §2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong- basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33. (iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate- treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34. 530 F. 3d 87, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Scalia and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. 1
Supreme Court Deals Blow To Government Unions National Public Broadcasting (June 27, 2018) Scott Horsely and Nina Totenberg In a blow to organized labor, the U.S. Supreme Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining. The vote was a predictable 5-4. Justice Samuel Alito wrote the majority opinion with the court's conservatives joining him. "Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities," Alito wrote. "We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." The decision reverses a 4-decades-old precedent and upends laws in 22 states. It also comes on the last day of this Supreme Court term, adding an exclamation point on the final sentence of a chapter that began with the appointment of conservative Justice Neil Gorsuch and saw conservative wins in decision after decision. This term was also an affirmation of the risky political gambit played by Senate Majority Leader Mitch McConnell, who denied a confirmation hearing for Judge Merrick Garland, President Barack Obama's pick for the court after Justice Antonin Scalia died. The plaintiff in this case, Mark Janus, a child-support specialist for the state of Illinois, challenged a requirement that government workers who opt out of a union still have to pay partial dues to cover the union's cost of negotiation and other functions. In 1977, the Supreme Court had drawn a distinction between such mandatory "agency fees" and other, voluntary union dues, which might be used for lobbying or other political activity.
Wednesday's decision erases that distinction. The court's conservative wing found that negotiations by public sector unions are inherently political and nonmembers cannot be compelled to pay for them. "In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters," Alito wrote. "We have often recognized that such speech 'occupies the highest rung of the hierarchy of First Amendment values' and merits 'special protection.' " Alito dismissed the argument that allowing nonmembers to opt out of negotiating fees would allow them to unfairly piggyback on their dues-paying co-workers. Janus "strenuously objects to this free-rider label," Alito wrote. "He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." The high court heard a similar case in 2016, but deadlocked 4-4 after Scalia's death, giving public sector unions a two-year reprieve. While the Obama administration sided with the union in that earlier case, the Trump administration backed Janus and his fellow union holdouts. Wednesday's ruling is a victory for conservative activists who have been waging a multipronged battle against organized labor — and a potentially crippling blow for public sector unions. "Public employee unions will lose a secure source of financial support," Justice Elena Kagan wrote in a dissenting opinion. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis," that is, allowing past rulings to stand. The plaintiff in this case, Mark Janus, a child-support specialist for the state of Illinois, challenged a requirement that government workers who opt out of a union still have to pay
partial dues to cover the union's cost of negotiation and other functions. In 1977, the Supreme Court had drawn a distinction between such mandatory "agency fees" and other, voluntary union dues, which might be used for lobbying or other political activity. Wednesday's decision erases that distinction. The court's conservative wing found that negotiations by public sector unions are inherently political and nonmembers cannot be compelled to pay for them. "In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters," Alito wrote. "We have often recognized that such speech 'occupies the highest rung of the hierarchy of First Amendment values' and merits 'special protection.' " Alito dismissed the argument that allowing nonmembers to opt out of negotiating fees would allow them to unfairly piggyback on their dues-paying co-workers. Janus "strenuously objects to this free-rider label," Alito wrote. "He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." The high court heard a similar case in 2016, but deadlocked 4-4 after Scalia's death, giving public sector unions a two-year reprieve. While the Obama administration sided with the union in that earlier case, the Trump administration backed Janus and his fellow union holdouts. Wednesday's ruling is a victory for conservative activists who have been waging a multipronged battle against organized labor — and a potentially crippling blow for public sector unions. "Public employee unions will lose a secure source of financial support," Justice Elena Kagan wrote in a dissenting opinion. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual
principles of stare decisis," that is, allowing past rulings to stand. "This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor," Lee Saunders, president of the American Federation of State, County and Municipal Employees, said in a statement when the case reached the high court. Government workers have been a relative stronghold in an otherwise shrinking labor movement. More than a third of the public sector workforce is unionized, compared with less than 7 percent in the private sector. A survey by the AFSCME — the union Janus would have to pay into — found that if agency fees were no longer mandatory, 15 percent of employees would stop paying them, while 35 percent would continue to pay. The balance of workers were "on the fence." Justice Thomas, Opinion of the Court SUPREME COURT OF THE UNITED STATES JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. on writ of certiorari to the united states court of appeals for the eighth circuit [June 18, 2009] Justice Thomas delivered the opinion of the Court. The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age
discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern. In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U. S. C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL’s objections, the District Court instructed the jury that it must return a verdict for Gross
if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. App. 9–10. The jury was further instructed that Gross’ age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id., at 10. The jury was also instructed regarding FBL’s burden of proof. According to the District Court, the “verdict must be for [FBL] … if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this Court addressedthe proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000eet seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed- motives” case. 490 U. S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231–258, Justices White and O’Connor separately concurred in the judgment, see id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.), and three Justices dissented, see id., at 279–295 (opinion of Kennedy, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’ ” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258 (plurality opinion); id., at 259–
260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). Justice O’Connor further found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. In accordance with Circuit precedent, the Court of Appeals identified Justice O’Connor’s opinion as controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence … sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “ ‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse, supra, at 276 (opinion of O’Connor, J.)). The Court of Appeals thus concluded that the District Court’s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor—not just “direct evidence” related to FBL’s alleged consideration of age. See 526 F. 3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus
should have been instructed only to determine whether Gross had carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” See ibid. We granted certiorari, 555 U. S. ___ (2008), and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.1 We hold that it does not. A Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. In Price Waterhouse,a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account.” 490 U. S., at 258; see also id., at 259–260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). But as we explained in Desert Palace, Inc. v. Costa, 539 U. S. 90,
94–95 (2003) , Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was “a motivating factor” for an adverse employment decision. See 42 U. S. C. §2000e–2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §2000e–2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088. We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991) . Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997) . As a result, the Court’s interpretation of the ADEA is
not governed by Title VII decisions such as Desert Palace and Price Waterhouse.2 B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246, 252 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). …(SECTIONS DELETED)… We hold that a plaintiff bringing a disparate-treatment claim pursuant to the 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, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Although the parties did not specifically frame the question to
include this threshold inquiry, “[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 , n. 8 (2005) (“ ‘Questions not explicitly mentioned but essential to the analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented’ ” (quoting R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Ballard v. Commissioner, 544 U. S. 40 , and n. 2 (2005) (evaluating “a question anterior” to the “questions the parties raised”). 2 Justice Stevens argues that the Court must incorporate its past interpretations of Title VII into the ADEA because “the substantive provisions of the ADEA were derived in haec verba from Title VII,” post, at 4 (dissenting opinion) (internal quotation marks omitted), and because the Court has frequently applied its interpretations of Title VII to the ADEA, see post, at 4–6. But the Court’s approach to interpreting the ADEA in light of Title VII has not been uniform. In General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004) , for example, the Court declined to interpret the phrase “because of … age” in 29 U. S. C. §623(a) to bar discrimination against people of all ages, even though the Court had previously interpreted “because of … race [or] sex” in Title VII to bar discrimination against people of all races and both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) , utilized in Title VII cases is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 142 (2000) ; O’Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308, 311 (1996) . In this instance, it is the textual differences between Title VII and the ADEA that prevent us from applying Price Waterhouse and Desert Palace to federal age discrimination claims.
3 Justice Breyer contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive … play[ed] a role in the employer’s decision.” Post, at 2–3 (dissenting opinion). But that is a decision for Congress to make. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18). Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA, see supra, at 5–6. We must give effect to Congress’ choice. See 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21). 4 Because we hold that ADEA plaintiffs retain the burden of persuasion to prove all disparate-treatment claims, we do not need to address whether plaintiffs must present direct, rather than circumstantial, evidence to obtain a burden-shifting instruction. There is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the “but-for” cause of their employer’s adverse action, see 29 U. S. C. §623(a), and we will imply none. “Congress has been unequivocal when imposing heightened proof requirements” in other statutory contexts, including in other subsections within Title 29, when it has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90, 99 (2003) ; see also, e.g., 25 U. S. C. §2504(b)(2)(B) (imposing “clear and convincing evidence” standard); 29 U. S. C. §722(a)(2)(A) (same). 5 Justice Stevens also contends that we must apply Price Waterhouse under the reasoning of Smith v. City of Jackson, 544 U. S. 228 (2005) . See post, at 7. In Smith, the Court applied to the ADEA its pre-1991 interpretation of Title VII with respect to disparate-impact claims despite Congress’ 1991 amendment adding disparate-impact claims to Title VII but not
the ADEA. 544 U. S., at 240. But the amendments made by Congress in this same legislation, which added the “motivating factor” language to Title VII, undermine Justice Stevens’ argument. Congress not only explicitly added “motivating factor” liability to Title VII, see supra, at 5–6, but it also partially abrogated Price Waterhouse’s holding by eliminating an employer’s complete affirmative defense to “motivating factor” claims, see 42 U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would have been sufficient. Congress’ careful tailoring of the “motivating factor” claim in Title VII, as well as the absence of a provision parallel to §2000e–2(m) in the ADEA, confirms that we cannot transfer the Price Waterhouse burden-shifting framework into the ADEA. 6 Gross points out that the Court has also applied a burden- shifting framework to certain claims brought in contexts other than pursuant to Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v. Transportation Management Corp., 462 U. S. 393, 401–403 (1983) (claims brought under the National Labor Relations Act (NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitutional claims)). These cases, however, do not require the Court to adopt his contra statutory position. The case involving the NLRA did not require the Court to decide in the first instance whether burden shifting should apply as the Court instead deferred to the National Labor Relation Board’s determination that such a framework was appropriate. See NLRB, supra, at 400–403. And the constitutional cases such as Mt. Healthy have no bearing on the correct interpretation of ADEA claims, which are governed by statutory text. DISSENT Justice Stevens, with whom Justice Souter, Justice Ginsburg,
and Justice Breyer join, dissenting. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621et seq., makes it unlawful for an employer to discriminate against any employee “because of” that individual’s age, §623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The “but-for” causation standard endorsed by the Court today was advanced in Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins, 490 U. S. 228, 279 (1989) , a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(1). Not only did the Court reject the but- for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. PAGE 4

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Section Seven Public EmploymentFive Types of public employee.docx

  • 1. Section Seven: Public Employment Five Types of public employees: Civil service: merit principle Unionized: contract-based Special employees: variable Elected officials: constitutions and specific laws Political Appointees: will of appointers, specific laws Public Employment: First Amendment rights Requirements of Political Affiliation are generally illegal except for higher policymaking appointees: Rutan v. Illinois (1990): struck down system that froze all moves within Illinois employment system and where promotions and transfers were considered with political criteria - Note Scalia dissent Public Employment: First Amendment rights: SPEECH Pickering v. Board of Education (1968) - no damage to organization - “public significance” of speech Connick v. Meyers (1983) public significance of speech balanced with general preference of deference to managerial discretion
  • 2. Garcetti v. Ceballos (2006): internal memos criticizing use of affidavit for search warrant led to retribution and transfer Kennedy distinguished between speech that is “pursuant to their official duties” and that which contributes to “civic discourse” First category not protected by First Amendment: memo - Second category is: addressing public audience Public Employment: Constitutional Issues Right to not speak: 5th amendment - but public officials are expected to cooperate in investigations or they can be fired Public Employment: Constitutional Issues Fourth Amendment: Search and Seizure O’Connor v. Ortega (1987):office privacy case involving director in state psychiatric program at Napa State Hospital - case by case analysis - “reasonable expectation of privacy” in offices - special nature of public employees makes “probable cause” standard impracticable: “reasonableness” can be standard - thumb on side of employers in scale National Treasury Employees Union v. Von Raab (1989): “special needs” may make probable cause impracticable
  • 3. Public Employment Due Process Concerns Property interests: - Hale v. Walsh (1987) - Board of Regents v. Roth (1972) Public Employment: Due Process If property rights are established, Employer must show firing: - followed required procedures - was not for exercise of rights - same decision would have been made despite exercise of rights - speech or association is not protected or of public importance Public Employees: Due Process Concerns Liberty interests: Constitutional liberty interest can be created by linking firing to speech: Hale v Walsh (1987) Liberty interest linked to reputation/good name: Bishop v. Wood (1976): reasons not made public and did not affect liberty relating to reputation Safest to not give reasons when firing those without property
  • 4. rights Public Employment: Due Process Dismissals allowed for almost any non-elected employee for: cause: specific actions of malfeasance, nonfeasance. Violations of rules of employment – may require due process - Financial exigency or programmatic change(subject to contractual review – but may not require hearing since not action against the person) Unions and Public Employees Collective Bargaining and Public Unions: Janus v AFSCME (2018) challenged fair share dues. Union contracts cannot require “fair share” or other union dues for employment. Violates free speech clause. - Assumed it will make a major impact on union membership over time – the effects have not been as dramatic and conservatives hoped – lower numbers, but more union activism State law still determines major elements of collective bargaining, including right for public workers to strike.
  • 5. 7 Regulation of Public Sector Collective Bargaining in the States 5 CHART 1 Legality of Collective Bargaining for Select Public-Sector Workers Firefighters Police Teachers Illegal North Carolina South Carolina Tennessee Virginia Georgia North Carolina South Carolina Tennessee
  • 6. Virginia Georgia North Carolina South Carolina Texas Virginia Legal Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota
  • 7. Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Wyoming Alaska Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois
  • 8. Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Alabama Alaska
  • 10. Rhode Island South Dakota Tennessee Utah Vermont Washington West Virginia Wisconsin Wyoming No Statute/ Case Law Alabama Mississippi Alabama Colorado Mississippi Wyoming Arizona Source: Authors’ analysis. See Appendix for details. Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin. In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not the requirement) to bargain collectively. Many states have legislation that covers all public employees
  • 11. in the state and establishes both the right to organize and to bargain collectively. In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal environment where no set statutes or existing case law governs collective bargaining at the state level. As a result, collective bargaining is permissible at the state level, but the actual legality of collective bargaining depends on local laws. Regulation of Public Sector Collective Bargaining in the States 5 CHART 1 Legality of Collective Bargaining for Select Public-Sector Workers Firefighters Police Teachers Illegal North Carolina South Carolina Tennessee Virginia Georgia North Carolina South Carolina Tennessee Virginia
  • 12. Georgia North Carolina South Carolina Texas Virginia Legal Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada
  • 13. New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Wyoming Alaska Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana
  • 14. Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Alabama Alaska Arkansas California Colorado Connecticut Delaware District of Columbia
  • 15. Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Utah Vermont Washington West Virginia Wisconsin
  • 16. Wyoming No Statute/ Case Law Alabama Mississippi Alabama Colorado Mississippi Wyoming Arizona Source: Authors’ analysis. See Appendix for details. Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin. In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not the requirement) to bargain collectively. Many states have legislation that covers all public employees in the state and establishes both the right to organize and to bargain collectively. In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal environment where no set statutes or existing case law governs collective bargaining at the state level. As a result, collective bargaining is permissible at the state level, but the actual legality of
  • 17. collective bargaining depends on local laws. March 2014 * Milla Sanes is a Program Assistant at the Center for Economic and Policy Research, in Washington D.C. John Schmitt is a Senior Economist at CEPR. Regulation of Public Sector Collective Bargaining in the States By Milla Sanes and John Schmitt* Center for Economic and Policy Research 1611 Connecticut Ave. NW Suite 400 Washington, DC 20009
  • 18. tel: 202-293-5380 fax: 202-588-1356 www.cepr.net http://www.cepr.net/ Regulation of Public Sector Collective Bargaining in the States 8 A sizeable number of states have no state law or administrative code that addresses the issue of negotiations over wages and benefits. Where there is no regulation, the practice can be deemed “permissible,” determined on a more case-by-case basis, or regulated at local levels. Right to Strike CHART 3 Legality of Striking for Select Public-Sector Workers Firefighters Police Teachers Illegal Alabama Alaska Arizona Arkansas
  • 21. Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas Virginia Washington Wisconsin Alabama Arizona Arkansas Connecticut Delaware District of Columbia Florida Georgia Idaho Indiana Iowa Kansas Kentucky Maine Maryland Massachusetts
  • 22. Michigan Mississippi Missouri Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Rhode Island South Dakota Tennessee Texas Virginia Washington West Virginia Wisconsin Legal Hawaii Ohio Hawaii Ohio Alaska California Colorado Hawaii Illinois Louisiana
  • 23. Minnesota Montana Ohio Oregon Pennsylvania Vermont No Statute/ Case Law South Carolina West Virginia Wyoming Colorado Idaho South Carolina Utah West Virginia Wyoming South Carolina Utah Wyoming Source: Authors’ analysis. See Appendix for details. 14th Amendment Equal Protection: Discrimination
  • 24. Various Criteria: Basic assumption that government acted lawfully: victim has burden of proof, common law - “simple rationality test” - typical merit requirements “Suspect classifications”: race, alien status, religion brings “strict scrutiny”: government must have at least a “compelling interest”: constitutional law Middle ground: reasonableness: gender, age, minor interests, disabilities: statutory law - Lily Ledbetter Fair Pay Act of 2009: pay discrimination due to gender can be contested long after initial pay decision was made if lower pay is ongoing 1 Public Employment: Equal protection de jure v. de facto discrimination 2 Public Employment: Equal protection Evolving race criteria: Adarand v. Pena (1995): compelling interest needed for affirmative action. Narrowly tailored remedy expected Ricci v. DeStefano (2009): City of New Haven violated Title
  • 25. VII by refusing to certify test results when no black firefighters passed. Cannot reject open fair process solely on disparate results Comcast v. National Association of African-American Owned Media(2020) : “But for cause”: 3 Public Employment: Equal protection Equal Protection in College admission indicates court’s continual evolution: Schuette v. Coalition to Defend Affirmative Action (2014) States can ban consideration of race in college admissions or other public programs But already the court had banned any form of affirmative action that created any sort of quotas or operated mechanically. Fisher v. University of Texas at Austin(2016): left basic law race-based preferences inherently suspect but legal if schools -- and by extension, employers -- provide strong evidence their affirmative-action programs are narrowly tailored to achieve the goal of diversity. 4 Recent notable movement on discrimination(not administrative law) Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012) Courts cannot tell religious organizations who can they can fire
  • 26. as ministers: “ministerial exception” In hiring and firing of Sunday school teacher, first amendment trumps employment laws The Hobby Lobby case (2014): cannot require private employees to provide birth control 5 Public Employment: Equal protection: Gender Title VI of 1964 Civil Rights Act: forbids discrimination based on race, sex, religion, and national origin Title VII: applies Title VI to state and local governments - Retirement programs cannot discriminate 6 Public Employment: Equal protection: Gender Feeney v. Personnel Administrator of Massachusetts (1979) - veteran’s preference challenge – public interest in rewarding veterans outweighed gender impact Supreme Court has struck down discrimination of gays/lesbians if there was no public purpose United States v. Windsor (2013) : Federal Defense of Marriage Act overturned
  • 27. 7 Employment: Equal protection: Gender Harassment: Harris v. Forklift Systems (1993): “hostile environment” may constitute discrimination Pennsylvania State Police v. Suders (2004): were conditions so intolerable that reasonable person would feel forced to quit? “Conditional discharge” could constitute a employer action that qualifies for Title VII standing 8 Public Employment: Equal protection: Gender Nevada Department of Human Resources v. Hibbs (2003) - Rehnquist, 6-3 State must allow mothers and fathers to take leave under the Family and Medical Leave Act Documented history of workplace sex discrimination 9 Public Employment: Equal protection: Age Age discrimination in Employment Act (1967) Kimel v. Florida Board of Regents (2000): states immune from suits in federal courts, except in special case of court participants 11th Amendment
  • 28. - burden on private or non-federal gov’t employee to prove firing based primarily on age: JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. (2009) complicated in cutbacks, contracting Babb v. Wilkie (2020): Federal employees simply need to show discrimination was present, not standard of “but for” 10 Public Employment: Equal protection: Disabilities Americans With Disabilities Act (1990) - protects broadly, over 43 millions possibly protected - employers must make “reasonable accommodations”, but can avoid actions that entail “undue hardship” - falls under Kimel rule for state governments: Alabama v. Garrett (2001) 11 The NCSL (National Conference of State Legislatures)Blog “SCOTUS: Race Must Be 'But For' Cause in Employment Discrimination Suits By Lisa Soronen In Comcast v. National Association of African-American Owned Media the U.S. Supreme Court held unanimously that a plaintiff who sues under 42 U.S.C. §1981 must plead and prove that race was the but-for cause of his or her injury. This case is particularly relevant to states and local governments as employers. The but-for causation is a standard favorable to
  • 29. employers. Section 1981, enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” This case arose in the contracting context. African American entrepreneur Byron Allen, owner of Entertainment Studios Network (ESN), sought to have Comcast carry its channels. Comcast refused and ESN sued under §1981. ESN didn’t dispute that Comcast offered legitimate business reasons for not carryings its channels, but claimed these reasons were pretextual. The 9th Circuit held that a §1981 plaintiff only has to show that race discrimination played “some role” in the defendant’s decision-making process, not that it was the “but-for” cause of the defendant’s conduct. Under this “more forgiving” causation standard, ESN’s lawsuit could proceed. The Supreme Court rejected the 9th Circuit’s view and held that to win a §1981 case the plaintiff must plead and prove but-for causation. Justice Neil Gorsuch, writing for the court, noted that it is “textbook tort law” that plaintiffs must prove but-for causation. The court rejected ESN’s argument that §1981 creates an exception to the general rule. According to the court: “While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee that each person is entitled to the ‘same right . . . as is enjoyed by white citizens’ directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation.” ESN encouraged the court to adopt the “motivating factor” causation test from Title VII, which also prohibits race discrimination in employment. This standard is more favorable to employees than the but-for causation standard. The court
  • 30. declined, noting the differences between the statutes. “Title VII was enacted in 1964; this court recognized its motivating factor test in 1989; and Congress replaced that rule with its own version two years later. Meanwhile, §1981 dates back to 1866 and has never said a word about motivating factors. So we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard.” Justice Ruth Bader Ginsburg wrote a concurring opinion noting that the court didn’t decide whether §1981 applies to earlier stages of the contract-formation process because this question wasn’t presented in this case. She stated that it must apply, otherwise, employers could, for example, reimburse white interviewees but not black interviewees or even refuse to consider black applicants. States and local governments, like private employers, can be sued for employment discrimination under Section 1981. The 9th Circuit decision had numerous downsides for employers. First, it is easier for employees to prove that discrimination was one of a number of factors in an employment decision rather than the sole factor. Second, if the Supreme Court had agreed with the 9th Circuit, Section 1981 will be an even more attractive vehicle to sue employers. Compared to Title VII, it has a longer statute of limitations, no damages cap, and presumably no defense to damages where the employer would have made the same decision regardless of race. Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues. _____________________________________________________ ____ Babb v. Wilkie (2020) Supreme Court ruling will make it easier for feds to prove age discrimination
  • 31. By Nicole Ogrysko | @nogryskoWFED April 7, 2020 4:38 pm Federal News Network https://federalnewsnetwork.com/workforce- rightsgovernance/2020/04/supreme-court-ruling-will-make-it- easier-for-feds-to-prove-age-discrimination/ Federal employees may have an easier time proving age discrimination, thanks to a new ruling from the Supreme Court. In an 8-1 ruling, the Supreme Court on Monday said federal employees have a lower burden to prove differential treatment under the Age Discrimination in Employment Act (ADEA) compared to their counterparts in the private sector and state and local governments. The ADEA protects certain employees and job applicants who are 40 years and older from age-based discrimination in hiring, firing, promotion or demotion and other conditions of employment. The case before the Supreme Court came from Norris Babb, a clinical pharmacist at the Department Veterans Affairs who had sued the agency back in 2014. Babb said she was denied a promotion, holiday pay and training and development opportunities, in part, because of her age. According to the VA’s arguments, Babb could only obtain relief under the ADEA if her age was a “but-for cause” of the personnel action, meaning she’d have to prove she would have otherwise received the promotion or training if her age wasn’t taken into account. “This interpretation, the government contends, follows both from the meaning of the statutory text and from the ‘default rule’ that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct,” Justice Samuel Alito, who delivered the court’s opinion, said in Monday’s ruling. Babb, however, argued the ADEA prevents an agency from
  • 32. using age at any point during the personnel decision-making process. The court debated the correct interpretation and came to a relatively easy decision. Under the ADEA, the court said, federal employees need not prove age as a “but-for cause” for a personnel action itself. Instead, they must simply prove they received differential treatment due to their age during the personnel decision-making process. “The statute does not say that ‘it is unlawful to take personnel actions that are based on age;” it says that ‘personnel actions… shall be made free from any discrimination based on age,'” the court’s opinion reads. “As a result, 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,” Put another way, the court contends federal employees must prove their age was the reason for differential treatment that led to a personnel action, but not the reason for the firing, suspension, promotion or decision itself. Alito uses an example to illustrate the argument, where an agency must decide whether to promote 35-year-old “employee A,” or 55-year-old “employee B.” Under a hypothetical policy, an agency will first rank these two employees up for promotion using a numerical score based on non-discriminatory factors. Using these factors, “employee A” receives a score of 90, while “employee B” earns a score of 85. Next, the agency will dock five points from employees over the age of 40 and will give the promotion to the employee with the most points. Under this hypothetical scenario, “employee B,” the 55-year- old, has a final score of 80, while “employee A,” the 35-year- old, has a score of 90. “Employee A,” gets the promotion. “This decision is not ‘made’ ‘free from any discrimination’ because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not),” Alito said. “And this discrimination was ‘based on age’ because the five points would not have been taken away were it not for employee B’s age.”
  • 33. “Employee A” would have won the promotion even if the agency hadn’t considered the ages of both workers and hadn’t docked points from the older employee’s score, Alito acknowledged. But the agency still claims liability under the ADEA, the court argued. The ADEA, which Congress passed into law in 1967, originally applied only to private sector employees. Congress expanded the law’s scope back in 1974 to cover, state, local and federal governments. Lawmakers at the time simply added state and local government to the definition describing an “employer” under the ADEA. But Congress, however, added separate language outlining a distinct statutory scheme for the federal sector, a point that the Supreme Court said is notable. “We are not persuaded by the argument that it is anomalous to hold the federal government to a stricter standard than private employers or state and local governments,” Alito said. “That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.” This ADEA language ultimately gives federal employees a lower burden of proof in age discrimination cases compared to their private sector counterparts. The ADEA, however, does set tougher standards for federal employees seeking reinstatement, back pay, damages or some other relief related to a firing, demotion, suspension or other personnel action. These employees must, in fact, show age discrimination was a “but-for cause” of the personnel action, the court said. “Plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief,” Alito said. Only Justice Clarence Thomas, who said he interpreted the ADEA language differently, disagreed with the court’s opinion. Simply requiring federal employees to prove age discrimination
  • 34. “taint[ed] the making of a personnel action, even if the agency would have reached the same outcome absent any age-based discrimination,” is an “unworkable” rule, he argued. Essays should be 4-6 double-spaced pages. They should be written using only lectures and reading materials provided on Moodle. Identify the sources for specific facts, concepts, and quotes by simple parenthetical references. Since you are only to use class materials, the instructor should easily be able to identify the source. For the essays, you cannot “cut and paste”. Use the materials from class only and be sure to provide a simple reference, such as (Powerpoint) or (Library of Congress). Answer all parts of the chosen question. Demonstrate that you have reviewed and understand any relevant information in that section’s materials. When useful to the answer, incorporate details such as case names, author’s names, facts, and particularly specific terms or jargon important to that subject. The essays should be thematic. Sentences should be complete. Always address each part of the question. Always include specific details, terms, and cases that properly fit into the analysis. Congratulations for starting your new job in Human Resources today here at Western Oregon University! We are all glad to have you on board because of your special knowledge of the law of public employment. The president, Dr. Wanda Allover, has a back log of issues she hopes you will help her resolve.
  • 35. Her is her list. She is looking forward to getting your information and advice by May 27. 1. We need to be more discriminating. We want the “right sort of people”. The president likes “bright, well-prepared, energetic people who are comfortable to be with and who project the image of an vibrant mainstream organization.” Please explain to the Dr. Allover the way the courts view “equal protection” and what is allowable employment discrimination. In what situation (or based on what characteristics) can you most easily discriminate and in what circumstances is discrimination most difficult to legally justify? (What tests apply to discrimination based on different personal traits, such as “strict scrutiny”.) What grounds are between the two extremes? 2. Western Oregon has some problem employees we really want to dump. Some are long-term administrative staff, some are troublesome unionized faculty, and there is this really new person who seems “uppity”. Can these folks ever be fired? If we can fire them, how can we do it legally? 3. President Allover is a person with curiosity. She also wants to know what you think is the single best thing about the broad public employments system, and what you think is the worst thing about it. PENNSYLVANIA STATE POLICE V. SUDERS (03-95) 542 U.S. 129 (2004) 325 F.3d 432, vacated and remanded. Syllabus Opinion [ Ginsburg ] Dissent [ Thomas ]
  • 36. HTML versionPDF version HTML versionPDF version HTML versionPDF version Syllabus : PENNSYLVANIA STATE POLICE v. SUDERSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 03—95. Argued March 31, 2004–Decided June 14, 2004 In March 1998, the Pennsylvania State Police (PSP) hired plaintiff-respondent Suders to work as a police communications operator for the McConnellsburg barracks, where her male supervisors subjected her to a continuous barrage of sexual harassment. In June 1998, Suders told the PSP’s Equal Employment Opportunity Officer, Virginia Smith-Elliott, that she might need help, but neither woman followed up on the conversation. Two months later, Suders contacted Smith-Elliott again, this time reporting that she was being harassed and was afraid. Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Two days later, Suders’ supervisors arrested her for theft of her own computer- skills exam papers. Suders had removed the papers after concluding that the supervisors had falsely reported that she had repeatedly failed, when in fact, the exams were never forwarded for grading. Suders then resigned from the force and sued the PSP, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964. The District Court granted the PSP’s motion for summary judgment. Although recognizing that Suders’ testimony would permit a fact trier to conclude that her supervisors had created a hostile work environment, the court nevertheless held that the
  • 37. PSP was not vicariously liable for the supervisors’ conduct. In support of its decision, the District Court referred to Faragher v. Boca Raton,524 U.S. 775, 808. In that case, and in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, decided the same day, this Court held that an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” 524 U.S., at 765. But when no such tangible action is taken, both decisions also hold, the employer may raise an affirmative defense to liability. To prevail on the basis of the defense, the employer must prove that “(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that (b) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ibid. Suders’ hostile work environment claim was untenable as a matter of law, the District Court stated, because she unreasonably failed to avail herself of the PSP’s internal antiharassment procedures. The court did not address Suders’ constructive discharge claim. The Third Circuit reversed and remanded the case for trial. The appeals court disagreed with the District Court in two key respects: First, even if the PSP could assert the Ellerth/Faragher affirmative defense, genuine issues of material fact existed about the effectiveness of the PSP’s program to address sexual harassment claims; second, Suders had stated a claim of constructive discharge due to hostile work environment. The appeals court ruled that a constructive discharge, if proved, constitutes a tangible employment action that renders an employer strictly liable and precludes recourse to the Ellerth/Faragher affirmative defense. Held: To establish “constructive discharge,” a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified
  • 38. as a fitting response. An employer may assert the Ellerth/Faragher affirmative defense to such a claim unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. Pp. 9—21. (a) Under the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign? This doctrine was developed by the National Labor Relations Board (NLRB) in the 1930’s, and was solidly established in the lower federal courts by 1964, when Title VII was enacted. The Court agrees that Title VII encompasses employer liability for a constructive discharge. Pp. 9—11. (b) This case concerns employer liability for one subset of constructive discharge claims: those resulting from sexual harassment, or “hostile work environment,” attributable to a supervisor. The Court’s starting point is the Ellerth/Faragher framework. Those decisions delineate two categories of sexual harassment claims: (1) those alleging a “tangible employment action,” for which employers may be held strictly liable; and (2) those asserting no tangible employment action, in which case employers may assert the affirmative defense. Ellerth, 524 U.S., at 765. The key issues here are: Into which Ellerth/Faragher category hostile-environment constructive discharge claims fall, and what proof burdens the parties bear in such cases. In Ellerth and Faragher, the Court invoked the principle drawn from agency law that an employer is liable for the acts of its agent when the agent is “aided in accomplishing the tort by the existence of the agency relation.” Id., at 758. When a supervisor
  • 39. engaged in harassing conduct takes a tangible employment action against a subordinate, the Court reasoned, it is beyond question that the supervisor is aided by the agency relation. A tangible employment action, the Court stated, is an “official act of the enterprise” and “fall[s] within the special province of the supervisor.” Id., at 762. In contrast, when supervisor harassment does not culminate in a tangible employment action, Ellerth and Faragher explained, it is less obvious that the agency relation is the driving force. The Court also recognized that a liability limitation linked to an employer’s effort to install effective grievance procedures and an employee’s effort to report harassing behavior would advance Title VII’s conciliation and deterrence purposes. Id., at 764. Accordingly, the Court held that when no tangible employment action is taken, an employer may defeat vicarious liability for supervisor harassment by establishing the two-part affirmative defense. That defense, the Court observed, accommodates the “avoidable consequences” doctrine Title VII “borrows from tort law,” ibid., by requiring plaintiffs reasonably to stave off avoidable harm. Ellerth and Faragher clarify, however, that the defending employer bears the burden to prove that the plaintiff-employee unreasonably failed to avoid or reduce harm. Faragher, at 807. Pp. 11—15. (1) The constructive discharge at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of harassment or hostility to be actionable, the offending behavior must be sufficiently severe or pervasive to alter the victim’s employment conditions and create an abusive working environment. Meritor Savings Bank, FSB v. Vinson,477 U.S. 57, 67. A hostile-environment constructive discharge claim entails something more: working conditions so intolerable that a reasonable person would have felt compelled to resign. Suders’ claim is of the same genre as the claims analyzed in Ellerth and Faragher. Essentially, Suders presents a “worse case” harassment scenario, harassment ratcheted up to the breaking
  • 40. point. Like the harassment considered in Ellerth and Faragher, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official company act, a constructive discharge may or may not involve official action. When it does not, the extent to which the agency relationship aided the supervisor’s misconduct is less certain, and that uncertainty justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable. The Third Circuit erred in drawing the line differently. Pp. 15—19. (2) The Third Circuit qualified its holding that a constructive discharge itself constitutes a tangible employment action under Ellerth and Faragher: The affirmative defense delineated in those cases, the court noted, might be imported into the anterior issue whether the employee’s decision to resign was reasonable under the circumstances. However, the appeals court left open when and how the Ellerth/Faragher considerations would be brought home to the fact trier. The Court of Appeals did not address specifically the allocation of pleading and persuasion burdens, but simply relied on “the wisdom and expertise of trial judges to exercise their gatekeeping authority when assessing whether all, some, or none of the evidence relating to employers’ antiharassment programs and to employees’ exploration of alternative avenues warrants introduction at trial.” 325 F.3d, at 463. There is no cause for leaving the district courts thus unguided. Following Ellerth and Faragher, the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. Pp. 19—21. (c) Although the Third Circuit correctly ruled that the case, in its current posture, presents genuine issues of material fact
  • 41. concerning Suders’ hostile work environment and constructive discharge claims, that court erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. P. 21. 325 F.3d 432, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion. Excerpts from Majority Opinion by Justice Ginsburg: “…. To establish hostile work environment, plaintiffs like Suders must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [their] employment.” Meritor Savings Bank, FSB v. Vinson,477 U.S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc.,510 U.S. 17, 22 (1993) …. Although this Court has not had occasion earlier to hold that a claim for constructive discharge lies under Title VII, we have recognized constructive discharge in the labor-law context, see Sure&nbhyph;Tan, Inc. v. NLRB,467 U.S. 883, 894 (1984) (NLRB may find employer engaged in unfair labor practice “when, for the purpose of discouraging union activity, … [the employer] creates working conditions so intolerable that the employee has no option but to resign–a so-called ‘constructive discharge.’ ”). Furthermore, we have stated that “Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment.” Ellerth, 524 U.S., at 752. See also Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 64 (“The phrase ‘terms, conditions, or privileges of employment’ [in Title VII] evinces a congressional intent to strike at the
  • 42. entire spectrum of disparate treatment of men and women in employment.” (some internal quotation marks omitted)). We agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge. …. The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, we reiterate, see supra, at 1, the offending behavior “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor, 477 U.S., at 67 (internal quotation marks and brackets omitted). A hostile- environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e.g.,Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (CA8 1999) (“[A]lthough there may be evidence from which a jury could find sexual harassment, … the facts alleged [for constructive discharge must be] … so intolerable that a reasonable person would be forced to quit.”); Perry v. HarrisChernin, Inc., 126 F.3d 1010, 1015 (CA7 1997) (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”).8….” PAGE 1 This case shows the complexity of affirmative action law, and the court’s consistently movement regarding this issue. Basically New Haven justified its rejections of the outcome of its testing process by saying the disparate impact (the fact that no African American applicants emerged successfully) would
  • 43. subject it to lawsuits for discrimination under Title VII of the Civil Rights Bill. The US Supreme Court agreed with the white challengers that it was actually the city’s rejection of the test results that constituted a wrongful “disparate impact”, particularly since it was clearly race-based, while the test outcome reflected an objective effort to determine who was best qualified for the job. “Disparate treatment” means distinct groups are subject to different evaluation, opportunities, or services. “Disparate outcomes” means distinct groups experience different results when participating in a process. In sum, a government “affirmative action” seeking to enhance to increase minority participants in the government workforce, share of contract, or in higher education: 1) must be justified with a “compelling interest”; 2) must be narrowly tailored to correct that specific problem; and 3) cannot involve quotas or be applied in a mechanical manner that guarantees a share of the benefit for one racial group over another. SUPREME COURT OF THE UNITED STATES RICCI et al. v. DeSTEFANO et al. certiorari to the united states court of appeals for the second circuit No. 07–1428. Argued April 22, 2009—Decided June 29, 2009 New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated
  • 44. against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed. Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34. (a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e– 2(k)(1)(A)(ii) and (C). Pp. 17–19. (b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying 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. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results becausethe higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses
  • 45. what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in- evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment- related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in- evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26. (c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34. (i) The racial adverse impact in this litigation was
  • 46. significant, and petitioners do not dispute that the City was faced with a prima faciecase of disparate-impact liability. The problem for respondents is that such a prima facie case— essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e– 2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28. (ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29. (iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine
  • 47. whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race- based adjustment of test results, §2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong- basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33. (iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate- treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34. 530 F. 3d 87, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Scalia and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. 1
  • 48. Supreme Court Deals Blow To Government Unions National Public Broadcasting (June 27, 2018) Scott Horsely and Nina Totenberg In a blow to organized labor, the U.S. Supreme Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining. The vote was a predictable 5-4. Justice Samuel Alito wrote the majority opinion with the court's conservatives joining him. "Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities," Alito wrote. "We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." The decision reverses a 4-decades-old precedent and upends laws in 22 states. It also comes on the last day of this Supreme Court term, adding an exclamation point on the final sentence of a chapter that began with the appointment of conservative Justice Neil Gorsuch and saw conservative wins in decision after decision. This term was also an affirmation of the risky political gambit played by Senate Majority Leader Mitch McConnell, who denied a confirmation hearing for Judge Merrick Garland, President Barack Obama's pick for the court after Justice Antonin Scalia died. The plaintiff in this case, Mark Janus, a child-support specialist for the state of Illinois, challenged a requirement that government workers who opt out of a union still have to pay partial dues to cover the union's cost of negotiation and other functions. In 1977, the Supreme Court had drawn a distinction between such mandatory "agency fees" and other, voluntary union dues, which might be used for lobbying or other political activity.
  • 49. Wednesday's decision erases that distinction. The court's conservative wing found that negotiations by public sector unions are inherently political and nonmembers cannot be compelled to pay for them. "In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters," Alito wrote. "We have often recognized that such speech 'occupies the highest rung of the hierarchy of First Amendment values' and merits 'special protection.' " Alito dismissed the argument that allowing nonmembers to opt out of negotiating fees would allow them to unfairly piggyback on their dues-paying co-workers. Janus "strenuously objects to this free-rider label," Alito wrote. "He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." The high court heard a similar case in 2016, but deadlocked 4-4 after Scalia's death, giving public sector unions a two-year reprieve. While the Obama administration sided with the union in that earlier case, the Trump administration backed Janus and his fellow union holdouts. Wednesday's ruling is a victory for conservative activists who have been waging a multipronged battle against organized labor — and a potentially crippling blow for public sector unions. "Public employee unions will lose a secure source of financial support," Justice Elena Kagan wrote in a dissenting opinion. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis," that is, allowing past rulings to stand. The plaintiff in this case, Mark Janus, a child-support specialist for the state of Illinois, challenged a requirement that government workers who opt out of a union still have to pay
  • 50. partial dues to cover the union's cost of negotiation and other functions. In 1977, the Supreme Court had drawn a distinction between such mandatory "agency fees" and other, voluntary union dues, which might be used for lobbying or other political activity. Wednesday's decision erases that distinction. The court's conservative wing found that negotiations by public sector unions are inherently political and nonmembers cannot be compelled to pay for them. "In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters," Alito wrote. "We have often recognized that such speech 'occupies the highest rung of the hierarchy of First Amendment values' and merits 'special protection.' " Alito dismissed the argument that allowing nonmembers to opt out of negotiating fees would allow them to unfairly piggyback on their dues-paying co-workers. Janus "strenuously objects to this free-rider label," Alito wrote. "He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." The high court heard a similar case in 2016, but deadlocked 4-4 after Scalia's death, giving public sector unions a two-year reprieve. While the Obama administration sided with the union in that earlier case, the Trump administration backed Janus and his fellow union holdouts. Wednesday's ruling is a victory for conservative activists who have been waging a multipronged battle against organized labor — and a potentially crippling blow for public sector unions. "Public employee unions will lose a secure source of financial support," Justice Elena Kagan wrote in a dissenting opinion. "Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual
  • 51. principles of stare decisis," that is, allowing past rulings to stand. "This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor," Lee Saunders, president of the American Federation of State, County and Municipal Employees, said in a statement when the case reached the high court. Government workers have been a relative stronghold in an otherwise shrinking labor movement. More than a third of the public sector workforce is unionized, compared with less than 7 percent in the private sector. A survey by the AFSCME — the union Janus would have to pay into — found that if agency fees were no longer mandatory, 15 percent of employees would stop paying them, while 35 percent would continue to pay. The balance of workers were "on the fence." Justice Thomas, Opinion of the Court SUPREME COURT OF THE UNITED STATES JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. on writ of certiorari to the united states court of appeals for the eighth circuit [June 18, 2009] Justice Thomas delivered the opinion of the Court. The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age
  • 52. discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern. In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U. S. C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL’s objections, the District Court instructed the jury that it must return a verdict for Gross
  • 53. if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. App. 9–10. The jury was further instructed that Gross’ age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id., at 10. The jury was also instructed regarding FBL’s burden of proof. According to the District Court, the “verdict must be for [FBL] … if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this Court addressedthe proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000eet seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed- motives” case. 490 U. S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231–258, Justices White and O’Connor separately concurred in the judgment, see id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.), and three Justices dissented, see id., at 279–295 (opinion of Kennedy, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’ ” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258 (plurality opinion); id., at 259–
  • 54. 260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). Justice O’Connor further found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. In accordance with Circuit precedent, the Court of Appeals identified Justice O’Connor’s opinion as controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence … sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “ ‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse, supra, at 276 (opinion of O’Connor, J.)). The Court of Appeals thus concluded that the District Court’s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor—not just “direct evidence” related to FBL’s alleged consideration of age. See 526 F. 3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus
  • 55. should have been instructed only to determine whether Gross had carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” See ibid. We granted certiorari, 555 U. S. ___ (2008), and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.1 We hold that it does not. A Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. In Price Waterhouse,a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account.” 490 U. S., at 258; see also id., at 259–260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). But as we explained in Desert Palace, Inc. v. Costa, 539 U. S. 90,
  • 56. 94–95 (2003) , Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was “a motivating factor” for an adverse employment decision. See 42 U. S. C. §2000e–2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §2000e–2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088. We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991) . Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997) . As a result, the Court’s interpretation of the ADEA is
  • 57. not governed by Title VII decisions such as Desert Palace and Price Waterhouse.2 B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246, 252 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). …(SECTIONS DELETED)… We hold that a plaintiff bringing a disparate-treatment claim pursuant to the 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, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Although the parties did not specifically frame the question to
  • 58. include this threshold inquiry, “[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 , n. 8 (2005) (“ ‘Questions not explicitly mentioned but essential to the analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented’ ” (quoting R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Ballard v. Commissioner, 544 U. S. 40 , and n. 2 (2005) (evaluating “a question anterior” to the “questions the parties raised”). 2 Justice Stevens argues that the Court must incorporate its past interpretations of Title VII into the ADEA because “the substantive provisions of the ADEA were derived in haec verba from Title VII,” post, at 4 (dissenting opinion) (internal quotation marks omitted), and because the Court has frequently applied its interpretations of Title VII to the ADEA, see post, at 4–6. But the Court’s approach to interpreting the ADEA in light of Title VII has not been uniform. In General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004) , for example, the Court declined to interpret the phrase “because of … age” in 29 U. S. C. §623(a) to bar discrimination against people of all ages, even though the Court had previously interpreted “because of … race [or] sex” in Title VII to bar discrimination against people of all races and both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) , utilized in Title VII cases is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 142 (2000) ; O’Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308, 311 (1996) . In this instance, it is the textual differences between Title VII and the ADEA that prevent us from applying Price Waterhouse and Desert Palace to federal age discrimination claims.
  • 59. 3 Justice Breyer contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive … play[ed] a role in the employer’s decision.” Post, at 2–3 (dissenting opinion). But that is a decision for Congress to make. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18). Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA, see supra, at 5–6. We must give effect to Congress’ choice. See 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21). 4 Because we hold that ADEA plaintiffs retain the burden of persuasion to prove all disparate-treatment claims, we do not need to address whether plaintiffs must present direct, rather than circumstantial, evidence to obtain a burden-shifting instruction. There is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the “but-for” cause of their employer’s adverse action, see 29 U. S. C. §623(a), and we will imply none. “Congress has been unequivocal when imposing heightened proof requirements” in other statutory contexts, including in other subsections within Title 29, when it has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90, 99 (2003) ; see also, e.g., 25 U. S. C. §2504(b)(2)(B) (imposing “clear and convincing evidence” standard); 29 U. S. C. §722(a)(2)(A) (same). 5 Justice Stevens also contends that we must apply Price Waterhouse under the reasoning of Smith v. City of Jackson, 544 U. S. 228 (2005) . See post, at 7. In Smith, the Court applied to the ADEA its pre-1991 interpretation of Title VII with respect to disparate-impact claims despite Congress’ 1991 amendment adding disparate-impact claims to Title VII but not
  • 60. the ADEA. 544 U. S., at 240. But the amendments made by Congress in this same legislation, which added the “motivating factor” language to Title VII, undermine Justice Stevens’ argument. Congress not only explicitly added “motivating factor” liability to Title VII, see supra, at 5–6, but it also partially abrogated Price Waterhouse’s holding by eliminating an employer’s complete affirmative defense to “motivating factor” claims, see 42 U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would have been sufficient. Congress’ careful tailoring of the “motivating factor” claim in Title VII, as well as the absence of a provision parallel to §2000e–2(m) in the ADEA, confirms that we cannot transfer the Price Waterhouse burden-shifting framework into the ADEA. 6 Gross points out that the Court has also applied a burden- shifting framework to certain claims brought in contexts other than pursuant to Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v. Transportation Management Corp., 462 U. S. 393, 401–403 (1983) (claims brought under the National Labor Relations Act (NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitutional claims)). These cases, however, do not require the Court to adopt his contra statutory position. The case involving the NLRA did not require the Court to decide in the first instance whether burden shifting should apply as the Court instead deferred to the National Labor Relation Board’s determination that such a framework was appropriate. See NLRB, supra, at 400–403. And the constitutional cases such as Mt. Healthy have no bearing on the correct interpretation of ADEA claims, which are governed by statutory text. DISSENT Justice Stevens, with whom Justice Souter, Justice Ginsburg,
  • 61. and Justice Breyer join, dissenting. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621et seq., makes it unlawful for an employer to discriminate against any employee “because of” that individual’s age, §623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The “but-for” causation standard endorsed by the Court today was advanced in Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins, 490 U. S. 228, 279 (1989) , a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(1). Not only did the Court reject the but- for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. PAGE 4