Summary judgment may be appropriate, though rare, in cases of employment discrimination where the plaintiff fails to show a genuine factual issue with regard to the employer’s discriminatory motive or intent with regards to an employment action. Plaintiff has the initial burden of presenting their prima facie case by showing to a preponderance of the evidence that without further explanation by the employer, the adverse employment action against them was due to their protected class. The employer is then afforded the opportunity to present another reason for their employment action. This reason need not be wise nor practical, just nondiscriminatory. The plaintiff may defeat a motion for summary judgment either by discrediting the employer’s proffered reasons as being pretextual or by presenting evidence that the motivating reason for the employment action was more likely than not discriminatory. If the evidence is in balance, however, there is no genuine issue of material fact and the employer may prevail on summary judgment.
The following recent opinions reflect an inclination to uphold summary judgments for the defendant in discrimination cases. The court recognized recently in Brooks v. Peabody & Arnold, LLP, that while summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment, such does not preclude the remedy from ever being appropriate. The court rejected the plaintiff’s argument that she was fired due to her status as a disabled person. The plaintiff contended that her disability, rather than the warnings she had recently received at work or the company’s suspicions of fraud, was the reason for her termination. The court held that the plaintiff failed to present sufficient evidence of the defendant’s discriminatory intent to rebut the defendant’s showing that, through their use of a private investigator, they believed the plaintiff to be misrepresenting herself as disabled. The defendant was held to have discharged the plaintiff for lying about her disability, rather than for her disability, therefore withstanding the motion for summary judgment.
Generally, evidence of direct touching in a sexual harassment claim is enough to at least survive summary judgment, if not sufficient to allow the plaintiff to prevail on their claim. “[A] single act of harassment may, if egregious enough, [may] suffice to evince a hostile work environment.” Noviello v. City of Boston, 398 F.3d 76, 84 (Mass. 2005). In Rivera-Martinez v. Comm. Of Puerto Rico, et al., however, the court awarded summary judgment to the employer where the plaintiff complained that her employer sexually touched her forearm and a little over a year later, touched her back, torso and brassiere area. The court held that there was no indication that the employer’s touching, while inappropriate, was sexual in nature. Further, the court held that the plaintiff failed to show that the harassment was severe and pervasive or that it was reserved just for women.

On January 18, 2007 the U.S. Supreme Court added two new employment law cases to its docket. The Supreme Court only hears about 70 cases a year, and currently five of those cases will be cases involving the ADEA; a high percentage of cases to focus on one statute. The ADEA (Age Discrimination in Employment Act) was created in 1967 to afford workers over 40, protection from employment discrimination. Since its enactment, over 33 years ago, many unanswered questions still remain about the breadth of protection the statute affords older workers. Recently, however, the Supreme Court seems to be granting certiorari to an increased number of ADEA cases, due to the upsurge in related litigation. A few factors may explain the increased amount of ADEA claims; (1) baby boomers are now well into retirement age increasing the size of the protected class; (2) technological and medical advances have increased the average life span; and (3) with the economy possibly inching towards recession, many employers are reducing their workforce to cut costs, starting with older workers who tend to earn higher salaries.
Meacham v. Knolls Atomic Power Laboratory is one of the recently added employment law cases that the Supreme Court will decide this year. The case involves a federal research laboratory that dismissed 31 employees, 30 of whom were over 40. The defendants allege that they used factors like “flexibility” and “criticality” to assess employee skills when deciding whether the employee should be terminated. The ADEA provides that employers have the discretion to implement employment actions that adversely affect older workers, if the reason for doing so is reasonable. The gravamen of the Meacham case is whether the plaintiff or the defendant bears the burden of proving that the evaluation criteria used to terminate employees was, or was not, reasonable. The opinion from this case has the potential to greatly affect older worker’s rights. If the Supreme Court holds that the employee bears the burden of proving the unreasonableness of the employer’s actions, it will increase the difficulty of prevailing on an ADEA claim.
The other four ADEA cases on the Supreme Court docket are; Mendelsohn v. Spring/United Management, Fed. Express Corp. v. Holowecki Co., Kentucky Retirement Sys. V. EEOC and Gomez-Perez v. Potter. The question in Mendelsohn is whether the court may allow evidence from other employees who feel the defendant has discriminated against them because of their age, the exclusion of which could severely weaken the plaintiff’s claim. Holowecki is based on the more procedural question of whether an intake questionnaire may be used as a charge of discrimination. As employers are not allowed to use race, color, religion, sex, and origin even as factors when deciding employment actions pursuant to Title VII, the Supreme Court will decide if the same is true in regards to age in Kentucky Retirement Sys. Finally, Gomez-Perez deals with another question that forces the comparison of the ADEA with Title VII, of whether the ADEA also allows for claims of retaliation based on the employee’s involvement in an ADEA claim or complaint.
The decision of all five of these cases will create more concrete guidelines of which cases may be pursued under the ADEA and exactly which side bears the burden of proof in litigating those claims. In 2005, the Supreme Court announced in Smith v. City of Jackson that the ADEA was intended to be interpreted similarly to Title VII in allowing disparate impact claims, expanding the protection the ADEA offers. These are claims where the specific intent to discriminate need not be proven, just that a particular employment practice adversely affects those over 40. This issue was controversial due to the inclusion of the “reason other than age” defense provided for in the ADEA. The current Supreme Court has the power to cut back on the protection Smith offered older workers, though their doing so seems unlikely. Since Smith was decided, Justice O’Connor and Chief Justice Rehnquist have left the court and been replaced by Chief Justice Roberts and Justice Alito. Neither Justice O’Connor nor Justice Rehnquist joined the opinion in Smith. Therefore, even if the new judges vote in accordance with their conservative record, as long as the remaining judges adhere to their former interpretation of the ADEA, older workers may end this term with greater assurance in their protection under the ADEA.

In June, Attorney Davis gave a presentation to the North Reading Chamber of Commerce about Employment Law Hot Topics. The well attended function drew dozens of small to mid-size businesses. Attorney Davis discussed issues such as how to avoid misclassification of workers as independent contractors, how to best utilize non-compete agreements to protect a business’ trade secrets and proprietary information, an overview on sexual harassment law and training and the issue of undocumented workers. Attorney Davis then opened the floor to a general ‘question and answer’ session.

In May, Attorney Davis again participated in a forum at the New England College of Law in which he and the panelists discussed a wide variety of topics ranging from how to open and run a successful law practice to how to spot and avoid ethical issues in the practice of law. This was his 4th year participating on the panel.

In May, Attorney Davis was a panelist at the Massachusetts Continuing Legal Education (MCLE) panel on how to obtain a Probable Cause finding at the Massachusetts Commission Against Discrimination. Attorney Davis and the panelists received high praise from the audience, which was comprised of other attorneys and Human Resources personnel.

Attorney Davis was a featured panelist at the Regional Employment Law Conference for the National Employment Lawyers Association. Attorney Davis spoke on the issue of “How to Run a Successful Employment Law Practice.” The conference enjoyed a great turnout with attorneys from all over New England.

In unlawful discrimination claims, emotional distress is often a large part of any judgment that is awarded to the claimant. For years, the amount of monetary damages awarded to the claimant was taxed. The prevailing rationale was that the emotional distress damages was “income” as that term is defined by the IRS.
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