The case is EEOC v. Darden, decided on November 9, 2015 by Judge Joan A. Lenard of the Southern District of Florida [2015 U.S. Dist. Lexis 1498970]. The defense issued a motion to dismiss, which Judge Lenard denied. Judge Lenard also ordered Darden to file their answer to the EEOC’s complaints within 10 days of her decision. The facts of the case are that Seasons 52 was sued for both disparate treatment and pattern or practice in hiring of older applicants under the ADEA (Age Discrimination in employment act. The disparate treatment case was filed on behalf of two applicants (Anthony Scornovaca age 52 and Hugo Alfara age 49).
According to the EEOC, Seasons 52:
[M]aintained a standard operating procedure of denying employment to applicants in the protected age group (individuals 40 years of age and older) through their centralized hiring process. The EEOC asserts, for instance, that Defendants' hiring officials have told unsuccessful applicants in the protected age group that "you are too experienced"; "we are looking for people with less experience"; "we are not looking for old white guys"; "we are looking for 'fresh' employees"; and that Seasons 52 wanted a "youthful" image.
The pattern or practice charge was bolstered by statistical evidence of underrepresentation of older applicants in Seasons 52 restaurants nationwide.
Although important in its own right, the broader reason for the importance of the case is the reasoning Judge Leonard used in her ruling [1]. Before discussing her reasoning, it is necessary to review background facts relating to the mixed-motive theory of disparate treatment and the Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989) [490 US 228], the Civil Rights Act of 1991 (CRA-91), and the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. (2009)[557 U.S. 157]. It should be noted that Hopkins was a Title VII case, whereas Gross was an ADEA case.
In Hopkins, Anne Hopkins provided strong direct evidence that she was the victim of stereotypical sex discrimination that led to failure to promote in successive years. The Supreme Court agreed and ruled that that when there is evidence of sex discrimination (an illegal motive), the defendant can escape liability if it can prove a legal motive for the challenged selection decision (that it would have not promoted her for other legal reasons). However, the justices were divided proof of illegal motive required substantial (“but for”) evidence, or a lesser burden, that it merely contributed to (was a motivating factor) for the challenged selection decision. Congress answered this question in CRA-91 by affirming the lesser burden (i.e., motivating factor).
Prior to the Gross ruling, there were many ADEA mixed motive cases that were treated the same as Title VII mixed motive cases. However, in Gross, the Supreme Court struck down mixed motive theory in ADEA cases on grounds that the CRA-91 affirmation of the lesser burden applied only to Title VII cases on grounds that the statute addressed only the Hopkins ruling.
Now for interesting part in the present case. Judge Lenard ruled that the Gross ruling applied only to mixed motive cases, and that the lesser burden applies to pattern or practice cases. Judge Lenard cited a similar ruling by the 10th Circuit in Thompson v. Weyerhaeuser (2009) [582 F.3d 1125]. The defendant in that case claimed that the rule for pattern or practice cases in the ADEA was the same as the rule for mixed motive cases in the ADEA. However, the 10th Circuit ruled:
We are not persuaded by Weyerhaeuser's argument. Gross does not involve the pattern-or-practice procedure at issue here. Moreover, the Court relied on the fact that Congress had amended Title VII to expressly adopt a "motivating factor" standard for discrimination rather than a "but for" inquiry. Here, Weyerhaeuser cannot point to an analogous difference in the language of Title VII and the ADEA that establishes that the pattern-or-practice framework is proper under one anti-discrimination statute but not the other.
In short, what had been a long-standing belief in disparate treatment pattern or practice cases (that the proof had to be “but for’) was struck down in this case as it had been by the 10th Circuit in the Thompson case.
All we need now for a Supreme Court ruling is for another court or two to disagree with the rulings in Thompson and the present case.
[1] There were several less important rulings in this case such as affirmation of the EOOC’s right to bring pattern or practice charges under the ADEA as well as Title VII.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
