One case concerns protection for employees against retaliation for reporting the discriminatory actions of a supervisor. The other involves age discrimination suits when the employer says that it took an action like laying off a worker for legitimate reasons not related to age.
The justices acted after asking the Bush administration for its views in both cases. The solicitor general’s office, reflecting the policies of the Equal Employment Opportunity Commission, urged the court to grant the cases and to rule for the employees in both.
Employment law has been an unusually active area for the court in recent years. The new age discrimination case is the fifth such case the court has accepted this term, a high number given that the justices will decide fewer than 70 cases.
Whether this trend simply reflects an aging workplace, or new pressures employers are placing on older workers to move out and make room for the young, is unclear. But surprisingly, important questions about how the Age Discrimination in Employment Act is supposed to work remain unanswered, 33 years after the act’s passage.
The statute, which protects employees against age-related discrimination beginning at age 40, permits employers to take action that falls unequally on older workers as long as “the differentiation is based on reasonable factors other than age.”
The question in the new case, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, is which side bears the burden of proof on the existence of a reasonable business justification. Does the employer have to prove its existence, or does the employee have to prove its nonexistence? The allocation of the burden of proof can have a huge impact on the outcome of such a case.
In this case, a federal research laboratory in upstate New York carried out a reduction in force and dismissed 31 employees, all but one of whom were over 40. The employees filed suit, alleging age discrimination. The suit focused on the criteria that the managers used to evaluate employees for retention or dismissal, including the employee’s “flexibility” and the “criticality” of their skills.
The employees won a jury trial, but the federal appeals court in New York eventually overturned the verdict on the ground that the employees had failed to carry their burden of showing that the evaluation system was unreasonable. In their Supreme Court appeal, supported by a brief filed by the AARP Foundation, the employees are arguing that the structure of the statute makes clear that the employer must prove reasonableness of an action that would otherwise be prohibited.
The question in the other discrimination case the court accepted Friday is whether employees are protected against retaliation for accusations of discrimination or harassment that they make during an internal company investigation.
Title VII of the Civil Rights Act of 1964 protects against retaliation, but some lower courts have interpreted that protection narrowly. In this case, Crawford v. Metropolitan Government of Nashville, No. 06-1595, the United States Court of Appeals for the Sixth Circuit ruled that the protection did not apply to charges made during an internal investigation.
The plaintiff in the case, Vicky S. Crawford, who had worked for 30 years as a payroll coordinator for the Nashville government, had not made a complaint about her supervisor, Gene Hughes. But when complaints by other women led the office to open an investigation, Ms. Crawford answered questions and described behavior that she characterized as harassment. No action was taken against Mr. Hughes, but Ms. Crawford and two other women who had testified were soon dismissed.
Urging the justices to hear Ms. Crawford’s appeal, Solicitor General Paul D. Clement said the appeals court’s interpretation “creates an unjustified gap in Title VII’s protection against retaliation.” The government’s brief added, “Internal investigations are an integral aspect of Title VII, and there is no reason to leave cooperating witnesses unprotected.”
Under the appeals court’s analysis, protection against retaliation is available only to those employees who themselves initiate a complaint about discrimination or harassment, or who have made a formal charge with the Equal Employment Opportunity Commission.
The justices did not indicate Friday whether they would schedule the new cases for argument in April, in time to decide them in this term, or whether they would be argued at the start of the next term in October.