The Employer’s Strategy in Gross v. FBL Financials

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6 Responses

  1. Wilson says:

    “(So far, the two circuits deciding that question continue to apply McDonnell Douglas).”

    Which two circuits are these, and in which decisions?

  2. Well done, Mike. How you managed in but one paragraph to capture the tortured doctrinal background of burden- shifting and causation going back to Price Waterhouse is amazing.

    I agree that Gross will have ramifications for other anti-discrimination areas, and was wondering what everyone thinks about the status of Mt. Healthy and its mixed motive burden-shifting paradigm. After all, Mt. Healthy was, in a sense, a godparent of the plurality opinion in Price Waterhouse. While Gross purported to rely in part on the statutory language of the ADEA, which of course is absent in 42 USC 1983, that part of the opinion was weak and, I think, would be a slim basis for distinguishing the two statutes. Perhaps, as you note in your blog, a distinction (at least as a descriptive matter) may be developing based on whether the type of discrimination at stake is “deserving of lesser importance” (perhaps with constitutional / free speech rights and Title VII rights on one side and the ADEA, ADA, and the like on the other).

    Yet I would think even this Supreme Court would have difficulty finding a principled schema for classifying and distinguishing “greater deserving” from “lesser deserving” rights in order to answer the burden-shifting question (unless “greater deserving” simply is used to refer to those statutes that contain clear causation and burden shifting language, akin to that found in the 1991 Title VII amendments).

    So I throw out for discussion: where is Mt. Healthy in all of this, as well as those statutory regimes that have relied on Mt. Healthy to support their burden shifting – causation schemes?

    I note as an aside — what about the NLRA? Would the Gross Court that cast doubt on Price Waterhouse do likewise with NLRB v Transportation Management and its support of the NLRB’s Mt. Healthy-like burden shifting scheme for discrimination under the NLRA? Yes, that case turned in part on Chevron deference, but would that stop the Court today given the manipulable nature of the Chevron doctrine.

    Steven Kaminshine
    Dean and Professor of Law
    Georgia State University College of Law

  3. Mike Zimmer says:

    Paul Secunda, on the Employment Discrimination listserv made a comment and Steve Kaminshine responded to it. They were both kind enough to let me post them here since I think they help flesh out the issues flowing out of Gross:

    Here is Paul’s:

    I can give everyone a vantage point of Mt. Healthy from the public employment law perspective. Although Mt. Healthy is still part of what I refer to as the public employee free speech five-test, its influence as a determinative factor in these cases has waned considerably since it was decided.

    First, of course, came Connick v. Myers, which made these cases increasingly turn on whether the employee’s speech was on a matter of public concern. Second, and more recently, came the bane of my existence, Garcetti v. Ceballos, which further meat cleavered the free speech right of employees. Now these cases are increasingly turning on the Garcetti inquiry: whether the public ee spoke in their capacity as an employee, rather than as a citizen. Be

    Because most of these free speech cases now turn on Connick or Garcetti, or perhaps on the Pickering balance itself, Mt. Healthy’s same decision test plays a remarkably small role. Indeed, it is not unusual to read a free speech decision with Mt. Healthy not even being cited to.

    I will let others chime in on Wright Line/Transportation Management in the NLRA context, but all of this is to say that perhaps the Gross decision was part of a larger move away from the same decision test. Not only in the ADEA, but in other areas like Mt. Healthy and public employment law.

    Here is Steve’s Response:

    I agree with your insight, Paul. I assume though that the decline in Mt Healthy references in public employee speech cases reflects not so much a retreat from Mt Healthy itself but the fact that many of today’semployee speech cases appear not to involve or turn on dual motives —
    that is the employer does not assert the existence of a second non-speech-based motive (such as chronic lateness) but rather focuses on the protected or unprotected nature of employee’s speech activity (i.e.
    whether the employee’s speech-based activity related to a matter of public concern and or was too disruptive to the employer’s operations).

    As I understand it, we only reach the Mt Healthy question if 1) the speech is deemed protected and non-disruptive, and 2) the employer seeks to offer a second reason for the discharge that is not related to the protected speech. Absent 1 and 2, we have no need to apply the same
    decision test.

    Thanks to Paul and Steve!

  4. Mike Zimmer says:

    This may be quite late but I thought I should provide the circuit decisions finding that McDonnell Douglas v. Green is still applicable to age discrimination cases, notwithstanding Gross:

    Geiger v. Tower Automotive, 08-1314 (6th Cir. Sept. 4, 2009)

    Velez v. Thermo King de Puerto Rico, 08-1320 (1st Cir. October 16, 2009).

  5. Frank Harty says:

    Interesting analysis, but based on a false assumption. Nyemaster Goode developed and applied the appeal strategy. Sidley was brought on board by the EPLI carrier two business days before our brief was filed. Carter is brilliant, gracious and experienced… but he argued Nyemaster Goode’s brief. Some innovative thinking does occur on the prairie. I would be happy to share our real strategy offline.