Archive for June, 2012

June 6, 2012

8th Cir: Giving legitimate business reason instruction in Equal Pay case non-reversible error

The Eighth Circuit Court of Appeals ruled today that a District Court erred in giving a Title VII legitimate business reason defense in an Equal Pay Act case, but that the error did not merit a reversal of the verdict for the defense by the court.

The plaintiff in Bauer v. The Curators of the University of Missouri was a female advanced practical nurse who alleged a male co-worker in the same job was being paid more.  Equal Pay Act cases are strict liability cases. Once the plaintiff can make their prima facie case that they were paid less because of sex, the defendant then has the burden to show that the difference in pay was due to a 1) seniority system; 2) a merit system; 3) a pay system based on quantity or quality of output or 4) a disparity based on any other factor rather than sex. If the defendant can’t show those one of those four factors, then the plaintiff wins.

Title VII cases require the plaintiff show a discriminatory/retaliatory intent by the employer. In a Title VII case — or Nebraska Fair Employment Practice Act case — an employee must make the prima facie case for discrimination/retaliation. Assuming the plaintiff makes the prima facie, case the employer must articulate any objective or subjective non-discriminatory/retaliatory reason for the firing. At the very least, the employee then has the burden to show that reason is false.

The 8th Circuit agreed that the legitimate business reason standard was error, but that when viewed in the context of the jury instructions as a whole the instruction was not prejudicial enough to warrant a reversal.

This is a favorable decision for employers. The best leverage employee-side attorneys have if the management-side attorney wants to give a legitimate business reason instruction in an Equal Pay Act, would be to make a judicial efficiency argument to the trial judge. In theory, the standard of review that mistaken instructions should be viewed in the context of a whole gives the employee some leverage on appeal. In practice the 8th Circuit would likely follow the Bauer case, but at the very least  an appeal of a legitimate legal issue that would create some uncertainty and expense for the defendant.

June 5, 2012

8th Circuit decision in St. Martin v. City of St. Paul will have limited effect on disability discrimination claims

The 8th Circuit’s decision in St. Martin v. City of St. Paul will likely have minimal effect because it applied law that was expressly overturned by the ADA Amendments Act of 2008.

St. Martin was a firefighter who injured his knee in a work accident. After a knee replacement he returned to a lighter duty job as a fire inspector where he continued to be employed. Plaintiff presented evidence that he would be unable to work as a firefighter, a fire captain,  a commercial vehicle inspector and doing landscaping work. The court relied on the United States Supreme Court’s decision in Sutton v. United Airlines to find that plaintiff was required to show  he could not do a “broad class of jobs.” The Court found plaintiff did not show he was disqualified from a broad class of work.

However the complained discriminatory acts took place before the effective date of the ADA Amendment Acts of 2008, so the court applied the old law.

When Congress passed the ADA Amendments Act of 2008 is that Congress explicitly intended to broaden the definition of disability that had been narrowed by Sutton, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and their progeny in the lower courts. Under the ADA Amendment Act of 2008, St. Martin likely would have at least proven disability because he could show that he could not do a class of jobs.

In any remaining claims under of  the “old” ADA arising from  a workers compensation claim in Nebraska,  plaintiff’s might be able to satisfy the requirements of St. Martin through the use of a loss of earning power report that might have already been prepared in a workers compensation case. Of course loss of earning power reports are not normally done by plaintif’s in single scheduled member cases such as St. Martin. There is nothing stopping a plaintiff from preparing a loss of earning report based off restrictions from a scheduled member case. However, preparing a loss of earning power report would add more expense to the case and create discovery and admissibility issues.  Plaintiff’s should tailor their written discovery and depositions  questions directed to towards management to obtain information about the classes of jobs the employee would be disqualified from because of their disability.