On the Legal Front: Tightening the Reins of Justice?
Florida Institute of Technology
In the July, 2000 issue of TIP, this column focused on Kimel v. Florida Board of Regents (2000), in which the Supreme Court struck down coverage of state entities in the Age Discrimination Act in Employment (or
ADEA). On February 1, 2001, in Board of Trustees of the University of Alabama v. Garrett,
the Supreme Court, in a parallel ruling, struck down coverage of state entities in the Americans with Disabilities Act (or ADA). Subsequently, on March 21, 2001, in
Circuit City Stores v. Adams, the Supreme Court supported Circuit Citys claim that it could not be sued for alleged workplace violations since, as a condition of his original employment, Adams had agreed to submit any such claims to binding arbitration. These three rulings have one major commonality; Justices Kennedy, OConnor,
Rehnquist, Scalia, and Thomas in the majority and Justices Breyer, Ginsburg, Stevens, and Souter in the minority.
Looking out onto the horizon, in April the Supreme Court granted certiorari in four other employment discrimination cases. Two of these will likely further restrict ADA coverage (Williams v. Toyota,
2000 & US Airways v. Barnett, 2000). Toyota features working as a severely restricted major life activity and
US Airways pits an employees request for accommodation against the seniority rights of other employees. The third case
(EEOC v. Waffle House, 1999) is a likely companion to Circuit City, and the fourth case (Adarand v. Slater,
2000) revisits the Supreme Courts 1995 ruling in Adarand v. Pena on application of strict scrutiny to federal government set asides.
The Kimel and Garrett Cases
Recall that in Kimel, the key issue was whether Congress had properly exercised its authority under Section 5 of the 14th Amendment to override 11th Amendment sovereign state immunity when, in 1974, it extended coverage of the ADEA to state entities. The case itself consolidated the claims of professors at an Alabama state university, professors and librarians at a Florida state university, and a prison guard at a Florida state prison. All three cases were thrown out. Applying the congruence and proportionality test, Justice OConnor ruled there was no evidence of a pattern of discrimination against older persons in state government and, therefore, that application of the ADEA to state entities was disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.
In Garrett, the plaintiffs were two Alabama state employees seeking relief under Title I of the ADA. One plaintiff (Patricia Garrett) was a registered nurse at a state hospital and the other (Milton Ash), a security officer for the Alabama Department of Youth Services. Echoing
Kimel, Justice Rehnquist ruled that the legislative record of the ADAsimply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.
In retrospect, these rulings were forecasted in Massachusetts Board of Retirement v. Murgia (1976) and
Cleburne v. Cleburne Living Center (1985). In these cases, the Supreme Court ruled that age (Murgia) and disability (Cleburne) are
not suspect classifications under 14th Amendment rules, meaning that restrictive state laws and/or policies based on age and disability classifications need only pass the lower rational basis test. In comparison, restrictive state laws and/or policies based on suspect classifications must pass the more heightened strict scrutiny test.
A more detailed discussion of levels of 14th Amendment scrutiny is given in this column in the July 2000 issue of TIP.
This distinction is crucial. To illustrate, in Fitzpatrick v. Bitzer (1976), a unanimous Supreme Court ruled that the Title VII classifications
are suspect and that Congress appropriately extended Title VII coverage to state entities in the EEO Act of 1972. As a result, Title VII classifications (race, color, religion, sex & national origin) enjoy
both Title VII protection and heightened 14th Amendment strict scrutiny, and individual Title VII plaintiffs are eligible for monetary remedies from the state treasury. In comparison, ADEA and ADA claims can no longer proceed against state entities. Furthermore, 14th Amendment rational basis challenges based on age and disability are for injunctive purposes only.
There is one final crucial point to note. After Kimel, a local police official asked me about its implications for local law enforcement. I responded that it was unclear because local entities do not enjoy the same level of immunity as state entities (see for example
Monell v. New York City, 1978). The one thing Garrett does clarify, however, is that the ADEA and the ADA
do apply to local entities. More specifically, in Garrett, Justice Rehnquist stated the following:
Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments such as cities and counties. All of these, they say, are state actors for purposes of the Fourteenth Amendment. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. These entities are subject to private claims for damages under the ADA without Congress ever having to rely on Section 5 of the Fourteenth Amendment to render them so.
In short, although it is clear that the ADEA and ADA no longer apply to state entities such as state government agencies, universities, hospitals, and/or correctional institutions, it is equally clear that they do apply to local entities such as municipal governments, local police departments, and local fire departments.
The Toyota and US Airways Cases
I have refrained from forecasting outcomes in prior columns, but these two cases appear to be transparent. The marquee issue in
Toyota is forecasted in Sutton v. United Airlines (1999), in which Justice OConnor, speaking for a 72 majority, stated the following with respect to
working as a severely restricted major life activity:
Because parties accept that the term major life activities includes working, we do not determine the validity of the cited regulations. We note, however, that there may be some conceptual difficulty in defining major life activities to include work, for it seems to argue in a circle to say that if one is excluded...that the exclusion constitutes an impairment, when the question youre asking is, whether the exclusion itself is by reason of handicap.
In Williams v. Toyota (2000), the 6th Circuit ruled that Williams is disabled because her carpal tunnel syndrome severely restricts her from performing manual tasks. In a prior case (McKay v. Toyota,
1997), the 6th Circuit had ruled that carpal tunnel syndrome does not qualify as a disability when the severely restricted major life activity is working.
In short, the 6th Circuit distinguishes between severe restrictions for manual tasks versus working, a distinction that the Supreme Court is likely to disagree with.
To be disabled under the ADA, a physical or mental impairment must severely restrict a major life activity. Plaintiffs claiming work as the major life activity have faced a major caveat, that the restriction must apply to a broad range of jobs. The author knows of no plaintiff who has overcome this hurdle.
The marquee issue in US Airways v. Barnett (2000) is whether an injured freight handler is permanently entitled to a less demanding mailroom job he was assigned to temporarily. A union agreement dictated a pecking order for job transfers based on seniority, and two other employees with more seniority than Barnett had already made transfer requests. The 9th Circuit, among other rulings, stated that [a] seniority system, while a factor in the undue hardship analysis, is not a per se bar to reassignment. Other circuit courts have eschewed the undue hardship analysis in such cases, ruling instead that requests for accommodation that oppose seniority rights are unreasonable as a matter of law.
Other key issues in this case include whether US Airways flexibly interacted with Barnett in the accommodation request process and whether Barnett was the victim of retaliation.
For example, in, Eckles v. Conrail (1996), an epileptic employee requested transfer from a night shift to a day shift, a move that would have required bumping a more senior employee. The 7th Circuit ruled:
After examining the text, background, and legislative history of the ADA duty of reasonable accommodation, we conclude that the ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees.
Similar rulings were also rendered by the 3rd Circuit (Kralik v. Durbin, 1997), 5th Circuit (Foreman v. Babcock,
1997) and 11th Circuit (Duckett v. Dunlop Tire Corp., 1977). Therefore, it seems unlikely that Barnett will succeed against US Airways.
The Circuit City and Waffle House Cases
These two cases will likely be remembered as the 2nd and 3rd acts of a three-act play. The first act was
Gilmer v. Interstate (1991), in which the Supreme Court, interpreting the Federal Arbitration Act of 1925 (or FAA), blocked the ADEA claim of a 62-year old securities dealer who had agreed, as a condition of his original employment, to arbitrate for any dispute, claim, or controversy involving himself and his employer. As a result, Robert Gilmer lost his private right to sue in federal court. However, at the same time, the Supreme Court ruled that claimants still have a right to file with the
EEOC, and that the EEOC still has the right to investigate, mediate and conciliate. The Supreme Court further noted that arbitration agreements will not preclude the EEOC from bringing actions seeking classwide and equitable relief.
Gilmer motivated many employers to enact arbitration agreements as a condition of employment, a move that was strongly opposed by the
EEOC. For example, in Policy Order 915.002 (1997), the EEOC stated the following:
An increasing number of employers are requiring as a condition of employment that applicants and employees give up their right to pursue employment discrimination claims in court and agree to resolve disputes through
binding arbitration. These agreements may be presented in the form of an employment contract or be included in an employee handbook or elsewhere. Some employers have even included such agreements in employment applications. The Commission is not unmindful of the case law enforcing specific mandatory arbitration agreements, in particular, the Supreme Courts decision in [Gilmer v. Interstate,
1991]. Nonetheless, for the reasons stated herein, the Commission believes that such agreements are inconsistent with civil rights laws.
The Policy Order contains roughly 20 reasons why the EEOC will vigorously oppose mandatory arbitration agreements,4 and as we will witness shortly,
Waffle House will likely be the most important test case of the EEOCs resolve.
4 At the same time, it should be noted that the EEOC, in several press releases, strongly supports Alternative Dispute Resolution (or ADR) when it is agreed to by both parties after an alleged violation.
The dissenters in Gilmer argued that the FAA is not applicable to employment contracts, a notion agreed to by the dissenters in
Circuit City.5 Otherwise, Circuit City merely affirmed application of
Gilmer to state employment claims. The ticking time bomb is in Waffle House. As forecasted in its Policy Order, the EEOC sued Waffle House for injunctive relief, as well as equitable relief for Eric Baker, the plaintiff in an ADA claim who had signed an arbitration agreement as a condition of employment. Previously, the 2nd Circuit ruled that such agreements preclude the EEOC from seeking monetary relief (EEOC v. Kidder Peabody,
1998), but the 6th Circuit ruled differently (EEOC v. Franks Nursery, 1999). In
Waffle House, the 4th Circuit agreed with the 2nd Circuit on this issue, giving the Supreme Court the opportunity to cast its vote.
5 Interestingly, Justice Souter was among the majority in Gilmer, but joined the minority of 4 in Circuit City.
Despite the 54 split in Circuit City, the outcome in Waffle House is hardly a slam dunk. The majorities in both
Gilmer and Circuit City made it clear that the EEOC has independent powers, and that claimants in ADEA and ADA and other like claims can file with the EEOC, even in the face of mandatory arbitration agreements. The key question, therefore, is whether the Supreme Courts ruling in
Gilmer (that the EEOC can bring actions seeking classwide and equitable relief) limits the EEOC to injunctive relief, or whether the EEOC may obtain for a plaintiff like Eric Baker, that which he would ordinarily be eligible for as a victorious plaintiff in a private suit.
Adarand v. Slater (2000), also known as Adarand V, revisits an issue addressed by the Supreme Court in
Adarand v. Pena (1995). Adarand v. Pena had, at the time, culminated a series of Supreme Court rulings that included
Fullilove v. Klutznick (1980), City of Richmond v. Croson (1989) and Metro v. FCC (1990). In
Fullilove, the Court used the moderate scrutiny standard to support a federal minority business enterprise (or MBE) set-aside program, whereas in
Croson, the Court used strict scrutiny to strike down a municipal MBE set-aside program. Then, in a surprising ruling, the Court again used moderate scrutiny to support a federal MBE set-aside program in
Metro, but reversed itself (and both Fullilove & Metro) in Adarand v. Pena, thus establishing
strict scrutiny as the standard for all set-aside programs, federal, state or local.
Critically, unlike Croson, in which a municipal set-aside program was struck down, the
Pena Court altered the level of scrutiny for the federal government without ruling on whether the program in question (set asides for disadvantaged business enterprises, or DBEs) was illegal. Subsequently, in support of federal set asides, the Justice Department issued a memorandum entitled Post-Adarand Guidance on Affirmative Action in Federal Employment (February 29, 1996), stating, in part, that:
[T]he Supreme Court in Adarand did not establish a constitutional bar on the use of race-based affirmative action measures by the federal government, but rather held that such action requires strict scrutiny. Moreover, a majority of the Court rejected the proposition that strict scrutiny of affirmative action measures means strict in theory, fatal in fact, and agreed that such measures may be permissible even under strict scrutiny. The Court in
Adarand did not decide the constitutionality of the program at issue in the case, but rather remanded the case to the lower courts so they could determine, in the first instance, whether the program satisfied strict scrutiny. No program was held unconstitutional in
Additionally, it should be noted that between Croson and Pena, there were examples of municipal set-aside programs that passed the strict scrutiny test at the circuit court level (e.g.,
Cone v. Hillsborough County, 1991 & Coral v. King County, 1991).
Interestingly, after Pena, the Department of Transportation, the author of the DBE program, did three things. First, it certified Adarand Construction, the plaintiff, as a DBE, which, temporarily, mooted the case. Second, it provided substantial evidence for why there is a
compelling interest for the program (i.e., prong 1 in the strict scrutiny analysis). And third, it altered the program in significant ways to establish that it is
narrowly tailored to the compelling interest (i.e., prong 2 in a strict scrutiny analysis). As a result, in
Adarand v. Slater (i.e., Adarand V), the 10th Circuit, which had previously cast doubt on the legality of the pre-Pena DBE program, ruled that the currently existing post-Pena program passes the strict scrutiny test.
The Supreme Court will, of course, decide whether the 10th Circuit was correct in its assessment of the post-Pena DBE program. Despite the familiar split on the Court in
Pena (Kennedy, OConnor, Rehnquist, Scalia & Thomas versus Breyer, Ginsburg, Stevens & Souter), the ultimate ruling is not transparent. The deciding vote in Pena was OConnor who, wrote extensively on why the strict scrutiny test is strict in theory but
not fatal in fact. Given the extensive analysis provided by the 10th Circuit in
Adarand V on both the compelling interest and narrow tailoring, it is difficult to believe that any program would ever again pass strict scrutiny if the newly refurbished DBE program is found wanting. Therefore, it is not fully clear whether the motive for hearing this case is to prevent an Adarand VI, or whether the slim majority on the Supreme Court wants to effectively eliminate any and all set-aside programs permanently.
It is tempting to conclude that a slim majority on the Supreme Court has mounted an effort to neutralize the impact of EEO laws. However, it should be noted that in 1998, this very same Court provided lopsided victories for alleged victims of sexual harassment (Burlington v. Ellerth and
Faragher v. Boca Raton), and in 1999, it reached strong consensus in four major ADA rulings (Cleveland v. Policy
Management, Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons v. Kirkingburg). Also, beyond the cases on binding arbitration (i.e., Circuit City
and Waffle House), the others discussed above have only surgical implications for the private sector. Furthermore, on the issue of binding arbitration, there are three potential reasons for employers to exert caution. First, the Supreme Court may in fact maintain the right to sue for monetary damages on behalf of plaintiffs. Second, Congress could at some future time take the sting out of any Supreme Court ruling in this domain by simply amending the FAA of 1925. Third, there are safeguards to prevent bias in arbitration, and there is nothing to prevent arbiters from providing the same remedies as federal district courts. It should be a long hot summer and a tantalizing fall.
Adarand v. Pena (1995) 115 S.Ct 2097.
Adarand v. Slater (CA 10 2000) 228 F.3d 1147.
Albertsons v. Kirkingburg (1999) WL 407456 (No. 98-591).
Bd. of Trustees of Alabama v. Garrett (2001). [Online]. Available: laws.findlaw.com/us/000/ 991240.html.
Burlington v. Ellerth (1998) 118 S.Ct. 2257.
Circuit City Stores v. Adams (2001). [Online]. Available:
City of Richmond v. Croson (1989) 488 US 469.
Cleburne v. Cleburne Living Center (1985) 473 US 432.
Cleveland v. Policy Management (1999) 140 LED 2d 664 (No. 97-1008).
Cone v. Hillsborough County (CA11 1991) 908 F.2d 908.
Coral v. King County (CA9 1991) 941 F.2d 910.
Duckett v. Dunlop Tire Corp. (CA11 1997) 120 F.3d 1222.
Eckles v. Consolidated Rail Corp. (CA7 1996) 94 F.3d 1041, 1047.
EEOC v. Franks Nursery & Crafts (CA 6 1999) 177 F.3d 448.
EEOC v. Kidder Peabody (CA 2 1998) 156 F.3d 298.
EEOC v. Waffle House (CA 4 1999) 193 F.3d 805.
Faragher v. City of Boca Raton (1998( 139 LED 2d 867 (No. 97-282).
Fitzpatrick v. Bitzer (1976) 427 US 445.
Foreman v. Babcock & Wilcox Co. (CA5 1997) 117 F.3d 800.
Fullilove v. Klutznick (1980) 448 US 448.
Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 US 20.
Kralik v. Durbin (CA3 1997) 130 F.3d 76.
Kimel v. Florida Board of Regents (2000) 528 US 62.
Massachusetts Bd. of Retirement v. Murgia (1976) 47 US 307.
McKay v. Toyota (CA6 1997) 110 F.3d 369.
Metro Broadcasting, Inc. v. FCC (1990) 111 L.Ed 2d
Monell v. Dept. of Social Services of the City of New York (1978) 436 US 658.
Murphy v. United Parcel Service (1999) 119
Sutton v. United Air Lines (1999) WL 407488 (No. 97-1943).
Williams v. Toyota (CA 6 2000) 223 F.3d 840.
US Airways v. Barnett (CA 9 2000) 228 F.3d 1105.
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