As the justices convene October 1 for a new session, one of the employment law matters on the docket provides another opportunity for the bench to wrestle with workplace discrimination—this time age bias—in an era in which mistreatment is more often subtle than blatant.
In Sprint/United Management Co. v. Ellen Mendelsohn, the plaintiff alleges she was fired in a downsizing process prejudicial to older workers.
Mendelsohn lost her job in 2002 when the company laid off 15,000 employees. She was 51 and worked for Sprint/United since 1989. To support her claim, Mendelsohn wanted to call to the stand colleagues who believed age was the cause of their dismissal.
Such a move is typical, says William Deveney, a partner at Elarbee Thompson in Atlanta. "It allows an emotional argument to be made to the jury," he says. "That issue arises in just about every reduction-in-force case."
But the trial court didn’t allow the other employees to testify because they had a different supervisor. The 10th Circuit Court of Appeals, based in Denver, overturned the jury’s decision in favor of the employer.
The testimony of Mendelsohn’s colleagues may have been the best way to show that the layoffs unfairly targeted older employees, says Joseph Sellers, a lawyer with Cohen Milstein Hausfeld & Toll in Washington.
"Direct evidence of discrimination is increasingly rare," Sellers says. "Most often, evidence of discrimination comes from circumstantial evidence. It’s hard to claim that the experience of other workers who were subject to the same [layoff] policy is irrelevant."
Charles Craver, professor of law at George Washington University, says the Sprint case will be a difficult one for the court.
"This is a close call," he says. "I don’t know where you draw the line. At what point do you say that this seems to be evidence of a firm practice?"
Another employment case is more procedural than substantive.
In Federal Express Corp. v. Holowecki, Patricia Kennedy and other colleagues made an age discrimination claim against the courier. The participants filed an intake questionnaire with the Equal Employment Opportunity Commission and attached a sworn affidavit.
But the agency did not open a case or notify FedEx of the charge. In a subsequent federal court proceeding, the company asserted the case had no merit because an EEOC charge was never filed. A trial jury ruling in favor of FedEx was overturned by the 2nd Circuit Court in New York.
A victory for FedEx ultimately could be a setback for business, according to Craver. It might result in the EEOC handing claimants a questionnaire and charge form at the same time.
"In the long run, it won’t necessarily help defendants," Craver says.
But allowing an intake questionnaire to be a charge "is really neglectful of the agency’s role as it was initially conceived in screening out meritless claims," says Manesh Rath, an attorney with Keller and Heckman in Washington.
Sellers, however, says the affidavit was a legitimate charge. If the case against FedEx is dismissed, "people will lack confidence in the integrity of the process and that will be the beginning of the end of the effectiveness of the EEOC," he says.