What’s up with employment law? As usual, lots. Let’s get up to speed on three issues heading ultimately to SCOTUS.
First up, a Jan. 10 decision from the Third Circuit: Karlo v. Pittsburgh Glass Works. Here’s the digest version: a company conducts a reduction in force using a facially neutral policy. The implementation of the policy has a much greater adverse impact on a subgroup of employees in the age range of 50-55. That group brings an age discrimination claim. The employer defends by arguing that employees in the 40-49 age group (also protected from discrimination by the Age Discrimination in Employment Act) were not adversely impacted and thus there was no violation. Wrong, declared the Third Circuit (in an opinion diverging from our own Fifth Circuit) reasoning that nondiscrimination against some protected employees does not wipe out alleged discrimination against other protected employees, whether in a disparate treatment case or a disparate impact one. Its authority was a 1981 SCOTUS case, Connecticut v. Teal, in which the Court rejected this “bottom line” defense because favorable treatment of members of one group does not justify discrimination against other members of the protected class. Here is a question from my final exam in employment law: “Why do we have laws banning discrimination?” An A+ answer is “because our laws focus on the right of an individual to rise or fall on their own merit.”
