SCOTUS: AARP v. EEOC's ADEA DQ'd

Clearly a statement about the overuse of acronyms, the Supreme Court has denied certiorari in a case between the American Association of Retired Persons and the Equal Employment Opportunity Commission.

The AARP petitioned after the 3th Circuit upheld a Commission rule that employers can offer reduced healthcare to older workers and retirees once they are Medicare-eligible, without violating the ADEA. The Supremes denied the petition Monday.

For it's part, the AARP was none too pleased. AARP Legislative Policy Director David Certner, via On the Hill:

Beyond blatant age discrimination, the new policy is an ineffective Band-aid for the bigger issue facing American employers and workers: the skyrocketing cost of health care," Certner says. "By allowing employers to reduce or even eliminate health benefits for retirees when they reach age 65, this rule essentially shifts the costs of all retiree health care on to the backs of older retirees.

"Blatant age discrimination" against retirees? You know who else has trouble finding affordable healthcare? Everyone who is still working. You knew when the boomers got in there they'd start fighting each other. Here's my legal analysis: not letting employers adjust healthcare rates for the Medicare-eligible makes as much sense as me suing Hooters for discrimination when it rejected my application as a waitress. I mean if. If it rejected my hypothetical application.

Whatever, you get it. Just because something's not equal doesn't mean it's not fair. Incidentally, the rule was promulgated at the insistance of labor groups and other associations, who feared that employers would reduce retiree health benefits across the board if they couldn't take Medicare eligibility into account.

Still, it's a funny, fickle Court they're running out east. Six months ago, it seemed you couldn't get into the place if you were under 55.

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Me Three - the Court Questions Your Buddy's Testimony

The Supreme Court took up the issue of "me too" evidence in discrimination claims on Monday, hearing arguments in Mendelsohn v. Sprint. The case hinges on whether or not testimony of other employees who were allegedly discriminated against ("me too" evidence) is admissible as circumstantial evidence of another employee's alleged discrimination. Did that make sense?

It's like this. You sue your employer. I say "hey, that happened to me, too" (thus the catchy name) usually under a different supervisor. I testify at your trial as to my events, thus providing "evidence" that your discrimination happened.

As always, SCOTUSblog (and now the awesome SCOTUSwiki - my new favorite website) has the best coverage. Not to be outdone the New York Times has a synopsis of the orals, noting that the Roberts Court seemed to be more conservative than Bush's EEOC, which would like to allow "me too" information when it can jive with the relevance and nonprejudicial rules of evidence.

Most of the Court seemed to think that letting in "me too" evidence would necessitate "minitrials" within trials to determine whether or not the information was accurate, and therefore relevant. From Paul Cane's Argument for Sprint:

Had the "me, too" evidence been admitted, then we would have had to respond with what might be called "not you, either" evidence. And then the plaintiff would have made a rebuttal to that showing, and we would have had trials within a trial on whether these couple of persons that plaintiff identified as potential bad actors were, in fact, bad actors...

I think they should disallow the use of the evidence until someone comes up with descriptions that don't make us sound like we're fighting over a Tonka truck.

Justice Souter said the evidence would be highly prejudicial, but could be probative too. After all, if your supervisor is discriminating and mine is discriminating, isn't that a sign of something? Not surprisingly, Justice Scalia didn't think so. Turns out, this is a really good oral transcript to read if you're a 2L stuck in evidence, because it goes to show you can be a Supreme Court Justice and still not know what Rule 403 really covers.

And then Justice Breyer sort of went off the deep end a little and said that "me too" evidence couldn't be allowed in or "[w]e’ll have trials that last a thousand years..."

A thousand years. Hmm. So, like longer than the time between now and the Magna Charta. Maybe the Court should start taking on more mandatory retirement cases...

Anyway, as posted here, this decision could have pretty sweeping effects on future pattern and practice cases. It's unlikely this is an issue the Court will balk on (unlike, say, 401(k) recovery for individual claimants).

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Lawyer Loses Case on Sex Poems? We Are Back in Business!

Whew – a somber day followed by a day of dead air – we're lucky anyone's still out there. Are you still out there?

Well, we hope so, because CE is returning to its bread and butter today, starting with a cautionary tale coming out of the 1^st Circuit that we had to ignore on Monday.

We'll spoil it for you: if you're going to write love notes to coworkers, don't sue when you get fired.

Until now, we've always assumed British guys in their 60's living in the states could do pretty much whatever they wanted. (Girls go crazy for that accent. It's ridiculous.) Apparently, so did David Bennett. The ex-pat IP lawyer was fired from a corporation in Massachusetts, and he sued for age discrimination, among other things.

The problem was, he was fired for allegedly penning a series of anonymous, sexually-tinged love poems to a coworker. Though he denied writing the poems, he was ultimately implicated because many of the spellings and words were in the King's English, and not our west-of-the-atlantic, bastardized hog-talk. We can only assume this was a way of invoking the bright line rule about girls and accents espoused above. Plus, they hired a handwriting expert, which is an area of science we honestly thought was made up for 80's cop shows and CSI.

The other (read: actual) important thing to remember from the case is that, in the end, it didn't matter whether Bennett wrote the poems or not. From the ABA Journal:

Whether or not Bennett actually was the author was "largely beside the point," the panel wrote. "(W)hat counts is whether the decision-maker ... believed the plaintiff to be the author and, if so, whether he acted on that belief in deciding to send the plaintiff packing."

One last thing - when they asked Bennett if he wrote the poems he denied it, and then he said he had never composed a poem in his life. A search of Bennett's desk revealed a whole collection of other poems in his handwriting. Remind you of anyone? We'll simply repeat our often-repeated plea: Before you file that lawsuit that will cost hundreds of thousands of dollars and take years to fully resolve, THINK ABOUT HOW DIRTY YOUR OWN FRIGGING LAUNDRY IS!

Or don't. This stuff is a boon for us.

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Supremes October Term Blatantly Discriminates Against the Young

The 2007-2008 Term is officially in full swing, so we thought we'd better do our blogitory duty and sum up the Supreme Court's October Docket for you.

We were a little worried about this term. There's been all this talk about the Roberts Court being more interested in business cases, but before last Tuesday the Court had only granted cert to two employment cases, which is pretty low. On 9/25, however, the Supremes tripled their employment-law workload, bringing the total up to seven. That may still seem low, but it's actually a lot compared to past sessions.

We've pored over all the records [read: scanned BNA summaries* while drinking] to bring you as in-depth an analysis as possible, and one thing is very obvious about the new Supreme Court: they are really, really worried about growing old. (Maybe send a gift with that Petitioner's brief?)

An explanation and the case summaries is after the jump.
[*BNA Labor Report - subscription req'd.]


With three employment cases having something to do with the Age Discrimination in Employment Act, and an ERISA case about who can sue for botched 401(k) investments, the Silver Set is definitely taking center stage (for employment cases, which means "far-left stage past the bathrooms" to everybody else).

There's Kentucky Retirement Sys. v. EEOC, a 6th Circuit case that mashes the ADEA, pension benefits and state public employment into one giant mess. This one could be big - the question presented:

Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

Federal Express v. Holowecki involves whether an "intake questionnaire" and affidavit submitted to the EEOC can be considered a discrimination charge under the ADEA even when the aged discriminitee didn't mean it to. Administrative procedure is obviously the coolest area of the law, so we're sure this will get tons of press.

Gomez-Perez v. Potter asks whether the ADEA prohibits federal employers from retaliating against employees who complain of age discrimination. What? This is a question? Apparently - the 4th Circuit held the ADEA doesn't protect federal employees like it does private ones. Plus, it's not like the government feels the need to live up to its rules for the private sector in other areas... God, it never stops sucking to work for the government, does it?

The term's token ERISA case is a potential barn burner - LaRue v. DeWolff, Boberg & Associates will settle the question of whether the totalitarian regime that is ERISA allows an employee to sue for losses based on his employer's failure to carry out his 401(k) investment instructions. The case got interesting when LaRue moved to dismiss after the Court granted cert, noting that the plaintiff took all the funds out of his 401(k) while the case was pending at the circuit court. The amici came out of the woodwork, and the Court recently denied the motion. For real, keep an eye on this one.

There are two other cases - Sprint/United Management v. Mendelsohn and CBOCS West v. Humphries - that raise game-changing issues in evidence and retaliation, and a state/federal jurisdiction case that is hiding an eminent judicial figure. Since none of them have anything to do with old folks, and this post is getting so dang long, we'll save these three cases for their own post later today.

Finally, the Court denied cert. in Jennings v. Dorrance, the discrimination case against the UNC soccer coach filed by former players. That sends it back to the District Court for trial. It's title IX, which is outside our purview (or interest, honestly) but we knew we'd get emails if we didn't put it in here.

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How Many Years Does it Take for a Partner to be a Partner? The World May Never Know.

Earlier this week, Sidley Austin settled its lawsuit with the EEOC, pulling the plug on the burning-hot spotlight they've been under, but sadly offering no precedent on the plight of literally hundreds of other old, wealthy lawyers.

The EEOC investigation goes back to "Sidley & Austin's" 1999 "demotion" of 32 "partners" to counsel status, booting them from sharing in firm profits. The firm claimed it made the decisions based on performance (Profits per Partner are a key indicator of firm health surveys like the AmLaw 100), but the EEOC brought a claim alleging the move violated the ADEA, since most of the partners were in their 50s and 60s.

The fight between the agency and the law firm has garnered ridiculous amounts of attention in "Biglaw" circles, since a final judgment could either affirm the current corporate model used by most big firms or mandate a complete structural readjustment of billions of dollars in compensation. In the least, firms were eyeing their mandatory retirement policies with veins popping out of their sweaty foreheads.

With the settlement, nobody knows if partners are employees or if mandatory retirement is even legal - as with most settlements, both sides are using it to show how right they were all along.

For comments from both camps, click the jump.


From Law.com:

Sidley agreed that the affected partners were employees subject to the ADEA only "[f]or the purposes of resolution of this matter." But the decree does not constitute a finding on the merits of the case. Nor does it require the firm to admit any wrongdoing. Sidley said on Friday the settlement was strictly a business decision. "The Firm believes that settling this case is preferable to the costs and uncertainties of continued litigation," Sidley said in a statement.

So, clearly the settlement could not set any type of precedent, right? It's not like Sidley made any explicit concessions or anything.

Mark H. Alcott, a partner at Paul, Weiss who called for the end of law firm mandatory retirement policies ...said the size and public nature of the Sidley settlement amounted to an "explicit concession."

Oh. Well, whatever. The mandatory retirement debate rages on - the ABA just weighed in against the policies in the latest ABA journal.

What we care about is the drama (and intellectual discourse regarding the definition of "employee", of course). This is, after all, the government toeing up against one of the biggest law firms in the land. But regardless of Sidley's high-profile status in the legal community, it's still an "employer" right? So what's so weird about the EEOC challenging an "employer"?

Well, for one thing, usually the agency waits until an employee asks them to get involved. Here, none of the "partners" ever contacted the EEOC (some of them even bowed out once it was clear the agency was looking for payroll records, according to the Law.com article). And usually "employees" and "partners" aren't exactly synomous terms.

But that's a story for another time. Stay tuned. We'll post about the 7th Circuit cases and the "employee"/"partner" fight real soon...

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