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Archive for the category “My Articles: Employment and Civil Rights”

A Collection of Employment, Civil Rights, and Labor Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of employment, civil rights, and labor legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!


My Articles:

U.S. Supreme Court Analyzes Definition of ‘Supervisor’

The United States Supreme Court, in the matter of Vance v. Ball State University 133 S.Ct. 2434 (2013), has weighed in on who qualifies as a supervisor of employees in order to assess liability for work place harassment. The Vance matter fills in the gaps left by the cases of Burlington Industries, Inc v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).


In Vance, the Plaintiff, a black woman, worked as a substitute server at Ball State University’s (“BSU”) Banquet and Catering division of Dining Services. Over the course of her employment with BSU, the Plaintiff lodged numerous complaints of racial discrimination. Her complaints reached a head with her interactions with a fellow BSU employee Saundra Davis. Plaintiff alleged that Davis intimidated her by giving her a hard time, glaring at her, slamming pots and pans around her, and smiling at her suspiciously. Most notably for the purposes of the Vance opinion, Plaintiff claimed in her complaint that Davis was her supervisor which, alleged Plaintiff, would make BSU liable for Davis’ actions in creating a hostile work environment for Plaintiff. The case turns on whether Davis can be legally defined as a supervisor or as a fellow employee in order to hold BSU liable.


Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate on the basis of race or color and, through case law, an employer can be held liable under the aforesaid Act if it allows for the creation or perpetuation of a discriminatory work environment which, by definition, would unlawfully change the terms and conditions of employment. An employer can be held directly liable for a racially hostile work environment if it was negligent in taking remedial action upon a showing that it knew or should have known about the harassment; however, if the harasser is a supervisor, then an employer can be held vicariously, and strictly, liable for the actions of the supervisor. The Vance Court narrowed an employer’s vicarious, and strict, liability by ruling here that vicarious and strict liability will only attach when/if the supervisor takes a “tangible employment action”, such as exacting discipline upon or transferring or terminating the complaining employee. The rationale for finding an employer vicariously and strictly liable for the actions of a supervisor is that there is a presumption that a tangible employment decision taken by the supervisor must be officially sanctioned by the employer or, at the very least, delegated by the employer; otherwise, the supervisor would not have the authority to make such a decision. Indeed, the Court noted that even if a tangible employment action did not take place, liability can attach to an employer if a complaining employee can show the supervisor created a hostile work environment and the employer can not respond with an adequate affirmative defense for the supervisor’s actions. Affirmative defenses include the employer claiming that it exercised reasonable care to prevent and/or promptly correct the harassing behavior and/or the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer to remedy the matter.


When attempting to apply the above to the Vance matter, the Court explored all of the various uses, permutations, and definitions of the word “supervisor” and concluded that its interpretation must fit within the interpretive framework of employment cases. The Court believed that the guidelines provided by the EEOC regarding who or what defines a supervisor are vague and ambiguous. The Court ruled that the ability to direct the tasks of another employee, at least on its face, is not sufficient to qualify someone as a supervisor. The key is whether the alleged supervisor can take a tangible employment action and, in fact, the Court ruled that so doing is the “defining characteristic” of a supervisor. Indeed, the Court indicated that a co-worker can certainly inflict psychological injury and even create a hostile work environment, but a co-worker cannot dock the pay of, or demote, another employee unless s/he is a supervisor.


Ultimately, the Court held that the Plaintiff simply provided insufficient evidence to suggest that her harasser directed, or was empowered to direct, her day-to-day activities by BSU, let alone take tangible employment action, sufficient to qualify her as a supervisor to warrant holding the employer vicariously and/or strictly liable.

Originally published on December 24, 2013 in The Legal Intelligencer Blog and can be found here.

USPS Listens to Deaf Employees’ Claims

The matter of Hubbard v. Donahoe, Civil Case No. 03-1062, U.S. District Court for the District of Columbia, is a class action lawsuit that pits the United States Postal Service against its deaf and hard-of-hearing employees.

The Equal Employment Opportunity Commission brought a class action suit on behalf of various deaf employees USPS alleging that the USPS denied them communication accommodations (e.g., American sign-language interpreters), especially during meetings, refused to provide them a TTY for telephone communication, failed to give them emergency evacuation notification systems, did not promote them or provide assistance in their effort to get promoted, and subjected them to a hostile work environment as a direct result of their disabilities.

After about 10 years of litigation, the parties have finally submitted a class action settlement agreement to the District Court for $4.55 million.

Over the course of my life, I have been involved in the deaf culture in one way or another and I have learned that although most people think of not being able to hear as the disability of a deaf person, the challenges the deaf have in the simplest act of communication with a hearing person are perhaps the disability that most impacts their lives each day. The inability to effectively communicate serves to isolate the deaf person – likely the only one at a given employment location – and therefore completely separate him from the rest of his co-workers. Therefore, failing to provide an interpreter or basic emergency systems or even a telephone (i.e., TTY) compounds a deaf person’s disability and enhances his or her isolation. I can think of few things that would make a work environment more hostile than near complete isolation.

Regardless of the merits of the case, it reminds us that those with disabilities are equal members of our society and our workforce and all have value. A case like this serves as an important reminder that employers all have the obligation to ensure that they honor their responsibility to take reasonable measures to accommodate the disabilities of their employees and to ensure that the workplace is one in which the employees feel comfortable.

Originally published in The Legal Intelligencer Blog on March 22, 2013 and can be found here.

The Effect of Retiring on Workers’ Compensation Benefits

The matter of Krushauskas v. Workers’ Compensation Appeal Board, 56 A.3d 64 (Pa.Cmwlth. 2012), involved a claimant who suffered a work-related injury while working as a stock picker for General Motors. Claimant Thomas Krushauskas filed a penalty petition against GM alleging it unilaterally suspended his benefits without any additional agreement or order. Simultaneously, Krushauskas voluntarily entered GM’s attrition plan and accepted early retirement. The court noted that no one was forced into the attrition plan and, in fact, Krushauskas had 45 days to revoke the decision to enter it. Krushauskas argued that he did not intend to retire and was simply taking advantage of the plan offered.

The court ruled that GM violated the Workers’ Compensation Act when it unilaterally – without agreement or court order as a result of Krushauskas’s retirement – suspended Krushauskas’ benefits because of him retiring per his entrance into the attrition plan. Generally, an employer is supposed to file a petition specifically requesting the relief sought. Despite this, the court noted that it has never required unreasonable strictness in workers’ compensation pleadings. Unfortunately for Krushauskas, because the court also ruled that he did, indeed, retire, the unilateral suspension did not cause any loss in workers’ compensation benefits owed to him.

The court’s ruling that Krushauskas did retire, contrary to his argument that he did not actually intend to do so, was based on a credibility determination of Krushauskas’ testimony. As stated above, Krushauskas’ representations in the documentation for the attrition plan indicated retirement and the court found those representations likely to be true.

Perhaps the most significant aspect of the court’s ruling is that it clarified and consolidated previous rulings that a workers’ compensation judge has the authority to suspend/terminate a claimant’s benefits without a formal petition from the employer as long as doing so would not be prejudicial to the claimant. A claimant having an opportunity to defend him or herself, and/or having adequate notice, would tend toward the matter lacking prejudice against the claimant even if the workers’ compensation procedures were not followed with precision.

The court noted, based on the facts presented, that Krushauskas certainly had sufficient notice and knew a suspension of benefits was possible. Indeed, the court drew significance from the fact that when GM argued that Krushauskas voluntarily retired, he objected on the basis of relevance, and not surprise, which would have been the objection if he did not have sufficient notice. Furthermore, Krushauskas never attempted to submit additional evidence to oppose the argument that he voluntarily retired.

The court further indicated that where someone accepts a retirement pension, as Krushauskas did here, then the employer is entitled to a suspension of benefits. Benefits will be suspended unless the claimant can show that he is seeking employment or he was forced into retirement because of a work-related injury. In the instant case, Krushauskas clearly accepted a retirement pension and never testified to seeking new or continued employment.

When collecting workers’ compensation, be sure to consider all implications before accepting a retirement plan or pension, as the workers’ compensation benefits may be terminated long before expected.

Originally published on February 1, 2013 in The Legal Intelligencer Blog and can be found here.

Physician Hire Thyself

The recent 3rd U.S. Circuit Court of Appeals case, Edwards v. Geisinger Clinic, (case number 11-1528), may provide some guidance into how far Pennsylvania’s at-will employment doctrine is able to stretch. Although unreported, and therefore not precedential, this case certainly sheds light on where the mind of the Court is in matters such as Edwards. Edwards was terminated by Geisinger Clinic, in breach, Edwards alleged, of the terms of an employment contract he had with Geisinger Clinic. The Court disagreed, ruling in favor of Geisinger Clinic on its motion for summary judgment. Plaintiff Edwards was a physician from the United Kingdom on a temporary work visa, who was attempting to secure certification from the American Board of Radiology. Pursuant to the guidelines set by American Board of Radiology, certification can only be granted after four (4) years of uninterrupted employment at an approved program. At some point, Geisinger Clinic approached Edwards to discuss Edwards’ working at one of its clinics. The parties engaged in discussions negotiating the terms of Edwards’ hire by Geisinger Clinic. Through the aforesaid discussions, Edwards believed Geisinger Clinic was aware of the American Board of Radiology’s requirements and gave him six (6) years to secure certification. As a result of the aforesaid discussions, Geisinger issued Edwards an offer letter, memorializing its requirement that Edwards is to secure certification within six (6) years. The offer letter indicated that the offer was subject to Edwards’ executing a practice agreement; however Edwards denied receiving the practice agreement at the time he executed the offer letter. Instead, Edwards merely executed the offer letter, in effect accepting the offer, and, later still, executed Geisinger Clinic’s employment application. In arguing his position, the above-mentioned employment application is significant for Edwards as it contains specific reasons why he could not be terminated. Unfortunately for Edwards, while he was working toward his certification, his work visa expired, forcing him to return to the United Kingdom. Edwards quickly attempted to reenter the United States in order to complete his requirements for certification. Geisinger Clinic was extremely cooperative in Edwards’ efforts to reenter the United States, representing to the immigration authorities that Edwards had at least a three (3) year commitment with Geisinger Clinic. Ultimately, Edwards was readmitted into the United States and resumed his position at Geisinger Clinic. At some point not long after the above-events, Geisinger Clinic realized that Edwards had not executed the practice agreement. Geisinger Clinic quickly remedied the apparent oversight in a way Edwards would argue effectively amounted to duress by approaching him while he was in the midst of treating a patient. As a result of the alleged distraction of his patient, Edwards merely skimmed the practice agreement, apparently overlooking the “at will” employment language buried within it. Eventually, and unfortunately for Edwards, Geisinger Clinic terminated its employment relationship with Edwards before the end of the employment term Edwards argued was contained in the offer letter. Edwards believed his termination was a breach of the written contract he had with Geisinger Clinic. Edwards argued the following in support of his claims against Geisinger Clinic: (1) the offer letter he executed with Geisinger Clinic was for an express term of years and termination before the term was completed is a breach of the contract; (2) Geisinger Clinic apparently emphasized that at least a four (4) year term will be required in order to secure certification; (3) the offer letter executed by Edwards had no “at-will” language; (4) the offer letter contained restrictions on Geisinger Clinic’s ability to terminate Edwards (i.e.: therefore his employment was not exactly “at will”); and, (5) in assisting him in his efforts to reenter the United States, Geisinger Clinic represented that it had a multi-year commitment with Edwards. The Court was not persuaded by any of Edward’s above-described arguments. The Court pointed out that an “at will” employment relationship is the default employment status in Pennsylvania and will be presumed unless clear and precise evidence to the contrary can be proffered. Part of the aforesaid evidence required includes evidence of the intent of the parties, explaining that simply the “subjective expectation” of a definite employment term by an employee and the “hope” of an employer that an employee will continue his employment are not sufficient evidence. Ultimately, the Court believed the evidence available proved that both parties intended to enter into an “at will” employment relationship, or at the very least, did not expressly reject an “at will” relationship. In response to the five (5) arguments above, the Court ruled as follows: (1) the contract was in the context of the practice agreement which expressly indicates it is “at will.” The fact that Edwards skimmed and quickly executed the practice agreement was done at his own risk; his consequent ignorance of its terms is no defense from their enforcement; (2) Geisinger Clinic’s statements regarding the length of Edwards’ employment term were not sufficiently precise to justify ruling that they formed a contractual term (these statements fall into an “employer’s hope” described above); (3) the offer letter did not have to contain “at will” language for it to create an “at will” employment relationship as “at will” is the default status of all employment contracts; (4) the enumeration of reasons it could not terminate Edwards actually reserved Geisinger Clinic’s right to terminate for all other reasons not so enumerated; and, (5) while Geisinger Clinic provided the immigration authorities a copy of the executed offer letter, it made no representation that it guaranteed employment for the full term mentioned in the offer letter. Indeed, Edwards was as equally free as Geisinger Clinic to terminate his employment relationship “at will” also. When attempting to protect one’s employment rights under an employment contract, the Edwards case teaches the lesson that people should review the contracts they sign diligently and completely to ensure there is an understanding of the terms and securing a lawyer for this purpose is always recommended.

Originally published in Upon Further Review on October 3, 2012 and can be seen here.

Coming of Age: Further Developments of the ADEA

The recent matter of Marcus v. PQ Corporation has seen the latest development in the application of the Age Discrimination in Employment Act (“ADEA”) since the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

Marcus v. PQ Corp.,  Nos. 11-2009, 11-2006 slip op. (3rd Cir. Jan. 19, 2012), dealt with a handful of Plaintiffs who were all terminated from their employment with PQ Corporation (“PQ”) not long after PQ purchased their previous employer back in 2005.  All of the Plaintiffs were over fifty-five years old at the time of their termination and, as discovery eventually revealed, no one under fifty-five was terminated by PQ.  Consequently, due to what the Plaintiffs believed to be something other than coincidence as to their commonality of all being over fifty-five and terminated from their employment, they brought suit against PQ for violating the ADEA.  After a trial on the matter, a jury entered a verdict in favor of the Plaintiffs, awarding the two appealing Plaintiff sums of approximately $2.5 Million each.

After the trial, both parties appealed the decision: PQ appealed the decision on the basis of jury instructions and a matter of law, and the Plaintiffs appealed the decision on the basis of taking issue with the calculation of damages awarded.

PQ’s appeal was multifaceted with regard to its issues with the jury instructions, raising four different arguments.  PQ first argued that the jury instructions did not accurately reflect the “but-for” causation established by Gross.  Per the Grossdecision, in order for an employer to be liable under ADEA, a plaintiff must show that “but for” the alleged age discrimination, he would not have been terminated.  The court ruled that it would not reverse a decision unless the lower court’s jury instructions “as a whole fail to correctly state the burden of proof [and, r]ead together, [the lower court’s instructions] were not deficient.”

PQ next argued that the jury instructions should not have included an instruction indicating liability can attach to an employer due to the animus of a non-decision-maker (the so-called “cat’s paw”).  The court ruled that, under applicable law pursuant to the ADEA, “it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate…[I]f a supervisor performs an act motivated by…animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment actions, then the employer is liable….”  The court further elaborated saying “the underlying principles of agency upon which subordinate bias theories are basedapply equally to all types of employment discrimination.”  Therefore, the instruction was appropriate.

PQ’s third argument was that the jury should have been given a specific business-judgment instruction.  A business-judgment instruction is one that makes it clear that an employer can make personnel decisions based on business considerations.  The court ruled that the jury instruction “the defendant had a right to hire and fire its employees whenever they [sic] wanted to, as long as they [sic] didn’t do it because of age” was sufficient to ensure the jury understood the law of business-judgment.

PQ’s fourth argument was that the lower court was not impartial in its jury instructions as a whole; however as the court ruled that the individual instructions described above were each acceptable, there is no question as to the impartiality of the instructions taken as a whole.

PQ then argued that judgment ought to have been entered in its favor as a matter of law.  When considering this argument, the court was unconvinced.  The court indicated that the Plaintiffs presented “considerable evidence” in support of their claims, including how PQ changed its reasons for termination over time, how it terminated only those employees over fifty-five years old, how the terminations are statistically significant as opposed to happenstance (even when controlling for alleged business decisions), and how statements from various people at PQ seemed to indicate a bias against older employees.  PQ argued that the evidence described above is insufficient to warrant a verdict in the Plaintiffs’ favor, however the court ruled that it is a jury’s discretion to weigh the evidence available and the above is sufficient to justify is verdict.

Finally, PQ argued that the award of the jury was inappropriate as it awarded damages for emotional distress in the absence of serious harm.  PQ argued that the size of the award reflected the jury’s ruling on passion and prejudice as opposed to measured consideration and, therefore, PQ should be entitled to a new trial.  The court quickly dismissed this argument citing well established case law indicating that the size of an award is not enough to prove the verdict was rendered due to passion and prejudice.  PQ then argued that the jury must have rendered its verdict due to passion and prejudice because it only spent three hours to deliberate, however again the court was not persuaded as it, again, cited a variety of case law indicating time spent deliberating is not dispositive.

Plaintiffs also raised arguments on appeal.  Plaintiffs argued that it should have been entitled to prejudgment interest and an adjustment for negative tax consequences.  The court ruled that one of the purposes of damages is to make an injured party whole; it also noted that an abuse of discretion in awarding damages “occurs when a district court deviates from this policy without a reasoned explanation.”  The court ruled that consideration of prejudgment interest and negative tax consequences were typical and the lower court’s denial of the above requested damages, contained in a single sentence, was clearly not a reasoned explanation for its deviation from the norm.  Therefore, the court ruled that the prejudgment interests and accounting for negative tax consequences were appropriate to make the Plaintiffs whole.

The applicability of the ADEA is in flux since the Gross decision.  The case of Marcus v. PQ Corporation will serve to make the ADEA’s applicability clearer in the wake of Gross, and help practitioners to more effectively and appropriately use it for the benefit of their clients.

Originally published in the Legal Intelligencer on May 9, 2012 and can be found here.


Gross Decision (?)

In the 1964 Christmas television classic, Rudolph the Red-Nosed Reindeer, prospector Yukon Cornelius, while in search of silver and gold (or is it gold and silver?), declares that the frightful Abominable Snowmonster of the North, who evokes fear and trembling in anyone who sees him, “is nothing without his choppers,” after toymaker turned dentist, Hermey the Elf, extracts all of the monster’s teeth. Consistent with Yukon’s observation, the United States Supreme Court, with Justice Clarence Thomas writing for the majority, in the recent case of Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (U.S. 2009), in what has become a landmark decision, may have used its judicial pliers to extract the teeth of the Age Discrimination in Employment Act (ADEA) for claims brought thereunder by plaintiffs who feel they were victims of age discrimination.

In Gross, the Plaintiff was at the time of the alleged actionable discrimination, a 54-year-old male claims administrator director who had worked for the Defendant for 30 years when Defendant elected to reassign Gross to the position of claims project coordinator. Simultaneously, Defendant reassigned Gross’ former subordinate, a woman in her early forties, to a newly created position that carried with it most of Gross’ former responsibilities. Gross believed his reassignment to be effectively a demotion, and that he was discriminated against based on his age, and he brought suit against Defendant under the ADEA claiming age discrimination.

At the conclusion of the trial of this matter at the District Court level, the Judge, over Defendant’s objections, instructed the jury that a verdict must be entered against the Defendant if Gross proved, by a preponderance of the evidence, that Defendant demoted him and Gross’ age was the motivating factor in Defendant’s decision to demote him. The jury was further instructed that Gross’ age was a motivating factor if it played a part or role in the Defendant’s decision to demote him. In other words, if the Defendant’s motives were a mix of lawful and unlawful (e.g.: age discrimination) reasons for demotion, then a verdict would have to be entered against the Defendant. Finally, the jury was instructed that if the Defendant proved, by a preponderance of the evidence, that it would have demoted Gross regardless of age, a verdict would have to be entered against Gross. This portion of the jury instructions presumes that the burden of proof shifts from Gross, who has to prove that age was the motivating factor in Defendant’s decision, to Defendant, who has to prove that it would have demoted Gross regardless of his age.

Gross was victorious at the District Court level causing the Defendant to appeal to the United States Court of Appeals for the 8th Circuit. The Circuit Court reversed and remanded the District Court decision for a new trial as a result of what it found to have been improper jury instructions. Gross appealed to the Supreme Court of the United States.

The question presented to that Court was whether a case under the ADEA requires (1) a shifting burden of proof and (2) could successfully proceed when an employer takes a discriminatory action against an employee based upon mixed motives. By including these two elements when enunciating jury instructions, the District Court implicitly requested the jury to apply an analysis required for alleged discrimination pursuant to Title VII of the Civil Rights Act as interpreted by the landmark case Price Waterhouse v. Hopkins, 490 US 228 (1989). The Court first examined whether a shifting burden of proof is warranted under the ADEA. It then examined whether the ADEA allows for a claim of mixed motives or requires a “but-for” analysis, id est but for the plaintiff’s age, the employer would not have taken the alleged discriminatory action.

As the District Court’s jury instructions were an application of the requirements under Title VII of the Civil Rights Act, the primary focus of the Court’s analysis was a comparison of the language of the ADEA with that of Title VII. When making its comparison, the Court, through Justice Thomas’ opinion writing for the majority, also took note of the fact that Congress has amended both Title VII and the ADEA, with some amendments occurring simultaneously. Ultimately, Justice Thomas’ textual analysis of the respective statutes is actually quite simple. First, Justice Thomas observed that the ADEA contains absolutely no language regarding a shifting of burdens of proof while Title VII does have such language. Second, Justice Thomas also noted that the ADEA does not contain any language implying that proving that an employer acted with mixed-motives is sufficient to warrant a judgment in favor of an allegedly discriminated-against plaintiff. Instead, as Justice Thomas pointed out, the ADEA specifically says that a discriminatory act must be “because of” an individual’s age. After a somewhat extensive, and perhaps torturously overwrought, dictionary and linguistic examination of the phrase “because of,” Justice Thomas concluded that a “but for” analysis is consistent with the aforesaid language. Finally, Justice Thomas, attempting to divine the mental intent of the legislators responsible for amending and voting for the changes to the ADEA years in the past, suggested that since both Title VII and the ADEA were amended around the same time, and the mixed-motives language inserted into Title VII was not correspondingly inserted into the ADEA, a logical conclusion could be drawn that Congress did not want and/or intend the ADEA to allow claims to successfully proceed in cases involving mixed-motives.

Justice Stevens, in his dissent, argued that burden shifting, and, therefore, permitting mixed-motives cases, ought to be permitted under the ADEA as the ADEA was drafted, in haec verba, from Title VII and that Title VII analysis has, for quite some time, been commonly applied to the ADEA by the United States Supreme Court. Furthermore, he explained that the phrase “because of” does not require the rigid and exclusive meaning that is synonymous with “but for” applied by Justice Thomas. Justice Stevens argues that “because of” can certainly permit multiple motives, including a discriminatory one, but does not, on its face, require a single motive as Justice Thomas suggests. Justice Stevens also pointed out that the cases under ADEA have regularly allowed burden-shifting and mixed-motives cases and one cannot conjure some sort of presumption, through an attempt to divine significant meaning from a non-action by Congress, from Congress’ amending Title VII and the ADEA differently. Indeed, as burden-shifting and mixed motives cases were already permitted under the Court’s previous rulings, why would Congress need to codify it? Justice Stevens argues that Congress’ lack of action confirms their approval of existing case law under the ADEA. Justice Breyer, in his rather brief dissent, simply focused upon the fact that a requirement to prove “but for” with direct evidence is, at its core, a requirement to prove what someone else’s thoughts were; an impossible task even for the thinker himself, especially after so much time and influences come to pass after the suit has been filed. For Justice Breyer, a “but for” analysis requires a plaintiff to engage in finding proof of hypothetical thoughts; proof that, in reality, could never be found, and resulting in a toothless ADEA that could never be effectively employed by plaintiffs. For Justice Beyer, Congressional intent was to have an ADEA under which plaintiffs could have successful claims, as opposed to an ADEA that requires a plaintiff to prove the impossible, effectively foreclosing any viable actions for age discrimination.

Obviously, Justice Thomas’ opinion had less-than-favorable results for Gross. As Gross’s employer did not have to prove what its actual motive was for demoting him, and Gross could not prove that “but for” his age he would not have been demoted, Gross’s matter was remanded to proceed in a manner consistent with Justice Thomas’ opinion. In sum, pursuant to the current authoritative precedent described herein, a plaintiff bringing an action under the ADEA must prove, by a preponderance of the evidence, that his age was the only factor motivating the alleged discriminatory action through the presentation of direct evidence in order to have a successful suit. As it stands now, plaintiffs bringing suit under the ADEA are required to plunge their way into the nearly impossible task of entering someone else’s mind to learn how he made his decisions. The Gross decision could not have come at a worse time because the declining economy has impacted heavily on older employees, resulting in a substantial increase in ADEA claims being filed at the state and federal discrimination administrative agency level by impacted employees. It makes their task of proving discrimination far harder. Although there is an effort by interest groups acting on behalf of employees within the ADEA age purviews to have Congress enact a law that would repudiate Gross, that effort may not be successful, especially given the outcome of the latest Congressional elections and the current political makeup of Congress.

After Gross, Hermey the Elf’s advice about the once-fearsome, but now-toothless, Abominable Snowmonster holds equally true for employers when faced with the post-Gross ADEA: “don’t let this big blowhard scare you anymore, just walk right past him.”

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on January 6, 2011 and can also be found here on my website.

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