How Far Will Protection From Discrimination Slip?

A case argued this month before the U.S. Supreme Court could make it more difficult to win discrimination suits, four years after another decision greatly weakened the 1967 Age Discrimination in Employment Act (ADEA).

The current case is about national origin, not age, but groups, including AARP, have filed "friend of the court" briefs because they see important civil rights issues in play.

(Update: Read our post on the Court's decision, June 24, 2013)

In University of Texas Southwestern Medical Center (UTSW) v. Nassar, Dr. Naiel Nassar lost his job at a health clinic where the supervising doctor openly made discriminatory remarks and questioned his work because she believed Middle Easterners are "lazy."

The crux of the case is a technicality, but an important one. As UTSW argues, Nassar lost his job after he complained about discrimination, not because of the discrimination itself. That's considered "retaliation." UTSW claims that the 1968 Civil Rights Act gives less protection to an employee who is a victim of retaliation than it does to one who has been directly discriminated against.

A decision is expected in June.

So where does age discrimination fit in?

The way AARP and others see it, if this large part of discrimination law can be reinterpreted, then it's one more step toward making it difficult to win such cases. They look back at the 2009 Supreme Court decision in Gross v. FBL Financial Services. It set standards for age discrimination that don't follow most settled civil right law, putting a heavier burden on the plaintiff to prove discrimination.

AARP doesn't want protection against other forms of discrimination weakened like age discrimination. The emphasis has been on pushing Congress to fix language in the ADEA to once again elevate age discrimination to the level of race and gender.

"We have seen in [other] cases this Supreme Court decision, Gross, cited over and over and over and over again on every issue you can imagine," says Dan Korhman, senior attorney for AARP Foundation.

According to Kohrman, this is what he hears from judges: "'As the Gross decision said, age discrimination is entitled to less protection.'"

In the arena of age discrimination, those are fighting words.

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Speaking of "fighting words," listen as Associate Justice Elena Kagan grills Daryl Joseffer, attorney for the University of Texas Southwestern Medical Center, about whether any other civil rights laws treat "retaliation" and "substantive discrimination" differently. You can follow along in the transcript here. The only bit of jargon you might want to know is the difference between "but for" and "mixed motive" discrimination. It's pretty straightforward - I'd either treat you differently "but for" the fact that you're in a protected class - or that fact is one of a number of reasons I'm discriminating against you, hence "mixed motives."


 

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