Seeking a Practical Age Discrimination Standard

In Gross v. FBL Financial Services, Inc., being argued Tuesday, March 31, the Supreme Court will address how to analyze mixed-motive claims under the Age Discrimination in Employment Act (ADEA). Nothing less than meaningful access for employment discrimination plaintiffs to relief under Title VII of the Civil Rights Act of 1991 (CRA of 1991) is at stake.

Background

To understand the importance of the Gross case to employment discrimination law, it is necessary to understand a fundamental distinction that has arisen in so-called individual disparate treatment cases, where a worker claims to have suffered an adverse employment action based on a protected characteristic under an employment discrimination statute. Initially, most of these cases were handled under the McDonnell Douglas pretext framework, which requires an employee to establish that the employer’s putative legitimate, nondiscriminatory reasons for its employment actions are pretextual and the real reason for the action was unlawful discrimination.

In 1989, the Supreme Court developed another model for proving disparate treatment discrimination in Price Waterhouse v. Hopkins. There, a woman denied promotion to partner in an accounting firm was able to show both legitimate and illegitimate motives for the employment action. Although a plurality of the Court decided that the plaintiff could make out a case by showing the illegitimate reasons for not promoting her were the “motivating reason,” a significant concurrence by Justice O’Connor set up that the illegitimate reason had to be a substantial part of the employer’s motivation and direct evidence was required to show that motivation. Many courts thereafter followed Justice O’Connor’s formulation.

Two years later, Congress enacted the CRA of 1991, requiring only that the illegitimate reason had to be motivating. Unfortunately, Congress did not make clear its intentions about what framework should govern age discrimination claims under the ADEA.

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Seventh Circuit Week in Review: Crook Impersonates Cop, Cop Impersonates Teenager

The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues.  The first, United States v. Abbas, clarified the harmless error doctrine as it relates to mistaken sentencing calculations.  The second, United States v. Nagel, considered the constitutionality of a ten-year mandatory minimum for enticement of a minor.  By some coincidence, both cases involved impersonation.

In Abbas (No. 07-3866), the defendant was convicted of several crimes, including impersonating an FBI agent.  Falsely claiming the power to make various immigration and criminal problems go away, Abbas tricked several desperate victims into paying him for assistance.  A jury found him guilty of a number of charged offenses, but acquitted him of extortion under color of official right in violation of the Hobbs Act.  Curiously, though, the district court judge sentenced Abbas based on the federal sentencing guideline for extortion under color of official right.  (As I discussed with my Sentencing students just last week, the guidelines permit defendants to be punished for crimes of which they have been acquitted.  Sound strange?  You would not be alone in so thinking!)

On appeal, Abbas argued that “extortion under color of official right” only applies when someone who is actually a public official abuses his authority, and does not cover private citizens who are merely pretending to be public officials.  In effect, Abbas argued that he was really only guilty of fraud, not the more serious offense of extortion.  And, had he been sentenced for fraud, his guidelines range would have been only 15-21 months, instead of the actual 24-30 months.

The Seventh Circuit (per Judge Tinder) agreed . . . but still declined to order a resentencing.  Abbas won the battle, but not the war.

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Fame v. Accuracy in Persuasion

Columnists in both the New York Times and Newsweek in the last few weeks have discussed how often we tend to be persuaded by people who are just plain wrong.  And, as a follow-up to our media and conflict resolution conference last week, it was interesting to realize what part the media plays in helping the wrong people to continually have outlets for their mistaken predications.  As Sharon Begley wrote:

Pointing out how often pundits’ predictions are not only wrong but egregiously wrong — a 36,000 Dow! euphoric Iraqis welcoming American soldiers with flowers! — is like shooting fish in a barrel, except in this case the fish refuse to die. No matter how often they miss the mark, pundits just won’t shut up. . . . The fact that being chronically, 180-degrees wrong does not disqualify pundits is in large part the media’s fault: cable news, talk radio and the blogosphere need all the punditry they can rustle up, track records be damned. But while we can’t shut pundits up, we can identify those more likely to have an accurate crystal ball when it comes to forecasts from the effect of the stimulus bill to the likelihood of civil unrest in China. Knowing who’s likely to be right comes down to something psychologists call cognitive style, and with that in mind Philip Tetlock, a research psychologist at Stanford University, would like to introduce you to foxes and hedgehogs.

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