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The Retail Employer

The Retail EmployerJuly 2008

Supreme Court Employment Cases 2007: Pt. I

by Jeanne Montross

The Supreme Court decided ten employment-related cases during the 2007 term that ended this June. Not only is this an unusually large number of employment cases for the Court to take in one term, but seven of these cases were decided in favor of employees. Employers should take note of both the number of employment cases and the balance of the decisions in favor of employees. While none of the cases appear to dramatically alter the legal landscape, together they demonstrate the Court's attention on the employment arena and a somewhat disappointing outcome for employers.

Age Discrimination in Employment Act (ADEA)

Several of the cases this term involved older workers and the ADEA. As our population ages, the rights of older workers will continue to be of growing significance to employers. Older workers rights' were favored in several cases, including Meacham v. Knolls Atomic Power Laboratory, which held that an employer defending a disparate impact claim under the ADEA bears the burden to prove its affirmative defense that reasonable factors other than age motivated the decision. Meacham demands attention because it determines important legal burdens of proof relating to how facially neutral business decisions (a reduction in force, for example) allegedly impact older workers. Simply put, this decision may make it more difficult for employers to defeat ADEA claims that often arise following layoffs or reductions in force. Fortunately, despite the holding, the reasoning in Meacham might ultimately support employers, as the Court reiterated important aspects regarding the nature of the claims.

In Federal Express Corporation v. Holowecki, the Court held that an intake questionnaire submitted to the EEOC is sufficient to satisfy the requirement of a having filed a charge of discrimination under the ADEA, even though the employee requested that the questionnaire be held in confidence and the employer never received a charge. This case, taken with the others, demonstrates a pattern of expansion toward employee rights under the ADEA and generally.

In Gomez-Perez v. Potter, the Court held that the ADEA included a cause of action for retaliation for federal employees. While this case does not directly impact the private employer, taken together with the other cases, it helps show a broader trend.

A final case relating to the ADEA, Kentucky Retirement System v. EEOC, favored employers and held that a retirement plan that uses age as a factor in determining benefits does not necessarily violate the ADEA. The Court articulated in detail the factors supporting its ruling, thereby offering guidelines for employers to review when assessing retirement plans.

Retaliation

Another seeming pattern in the cases decided this term was an expansion of workplace retaliation claims. As already noted, the Court held in Gomez-Perez v. Potter that federal employees had a cause of action for retaliation under the ADEA. In CBOCS West Inc. v. Humphries, the Court held that 42 U.S. Section 1981 provides a cause of action for retaliation based on race, despite the absence of an anti-retaliation provision. In comparison to Title VII retaliation claims, Section 1981 provides for longer statutes of limitation, no administrative exhaustion requirements and no caps on damages. Employers may remember Burlington Northern v. White, a 2006 Supreme Court case in which the Court broadened what conduct could be considered retaliatory under Title VII, and see an emerging pattern regarding the Court's expansion of remedies for retaliation.

Part II of this article will be continued in August, 2008.

Jeanne Montross advises and represents employers with respect to legal issues in the workplace. Jeanne works with David E. Nagle in the Richmond office of Jackson Lewis. David has advised employers with respect to legal issues in the workplace for over 25 years. He is a partner in the Richmond office of Jackson Lewis, a law firm devoted exclusively to the representation of employers in labor, employment, employee benefits and immigration law matters. Jackson Lewis has over 450 attorneys in 32 cities across the nation. David may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com. Jeanne may be reached at (804) 212-2860, or by email at jeanne.montross@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Make Sure Your Workplace is Misery Free Understand the Three Signs Every Employer Needs to Know

Everyone knows what a miserable job is: you wake up dreading going to work, feel miserable while you're there, have a sour attitude even when you're at home, and constantly dream of leaving. The thing is, miserable jobs aren't isolated to one industry or field; they're not found in one section of the country or at one type of organization; they're not unique to one level of job title or pay. Miserable jobs, in fact, aren't even related to the actual work required by the job itself says Patrick Lencioni, author of The Three Signs of a Miserable Job. They know no limits, have no boundaries, and can pop up anywhere, even at places you'd least expect.

While most companies aren't in business solely to ensure the happiness of employees, it's important to stamp out misery at work - for many reasons. For one, productivity decreases when employees are miserable and unfulfilled. That misery affects a surprising array of people - other employees, clients, customers, friends, family, even strangers. And misery at work can go beyond simply ruining someone's attitude for a few moments; it can deeply impact an individual's psychological and emotional health. Lencioni notes that it's hard to gauge exactly how much damage miserable work inflicts on people.

But, there's good news: there is a meaningful, cost-free way to reduce job misery. So, what can you do to make sure your workplace is doing all it can to combat the miserable job? In Three Signs, Lencioni uncovers three things you need to be aware of to avoid having miserable jobs - and miserable people - plague your workplace.

  1. Anonymity. No matter what the job or circumstance, people need to be seen, heard, and acknowledged at work. It's impossible to be fulfilled otherwise. That's because, as Lencioni points out, "All human beings need to be understood and appreciated for their unique qualities by someone in a position of authority."
  2. Irrelevance. Much like people need to be visible as individuals, they also need to know that the work they are doing is important to someone. Work that's done in a vacuum, without context, with no connection to the big picture, and without appreciation, is not fulfilling for anyone for long. Even if they would never say it to you, the most cynical of employees, Lencioni says, still need to know that their work matters, even if only to their boss.
  3. Immeasurement. As the author puts it, "Employees need to be able to gauge their progress and level of contribution for themselves." That means that each employee needs to be equipped with the tools, processes, and permission of the organization to discover and track for themselves their own personal success. Otherwise, if there is no gauge for success - or failure, for that matter - employees lose their motivation.

These signs are easy enough to understand. So, equipped with this knowledge, what can you do to make sure these problems aren't making your workforce - or even one person on your team - miserable? This series, The Three Signs, will help you more deeply understand and know how to deal with these signs when they arise in your organization. To learn about addressing the first sign, anonymity in the workplace, check out next month's article in this series.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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