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The latest lesson on the “ordinary meaning” of a critical preposition

June 24th, 2009  |  Pamela Wolf

>The US Supreme Court on June 18, 2009 gave us a new lesson on the “ordinary meaning” of the words “because of.” Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an adverse employment action was taken “because of” age means that “age was the ‘reason’ that the employer decided to act.” (Gross v FBL Fin Servs, Inc, USSCt, Dkt 08-441). Thus, held the majority, to establish a disparate treatment claim under “the plain language” of the ADEA, “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Age bias must be the sole cause, not just one cause.

Of course, as we all know, reasonable minds can differ. And in this case, four Justices had an entirely different take on the meaning of those two little words: “The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee,” wrote Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissenting. Acknowledging the majority’s correct citation of the dictionary definition of the controversial preposition – “‘by reason of’ or ‘on account of,’” – Justice Stevens emphasized in a footnote that the dictionary does not define “because of” as “‘solely by reason of’ or ‘exclusively on account of.’”

In a separate dissent authored by Justice Breyer and joined by Justices Souter and Ginsburg, the Justices declare: “The words ‘because of’ do not inherently require a showing of ‘but-for’ causation.” These three dissenting Justices found no reason to read the disputed preposition to require “but-for” causation.

Then there’s the matter of the meaning ascribed to the same two words in the High Court’s Price Waterhouse v Hopkins decision (49 EPD ¶38,936). Justice Stevens reminded the Gross Court that the words “because of” in the earlier plurality opinion concerning a Title VII sex-bias claim meant “that gender must be irrelevant to employment decisions.” “As we made clear, when ‘an employer considers both gender and legitimate factors at the time of making a decision, that decision was because of sex,’” Justice Stevens wrote.

I know– different Court, different Justices – only three of the Court’s current Justices were on the Court in 1989 when Price Waterhouse was decided. Still, it seems that the “ordinary meaning” of the words “because of” would not have changed so much in the ensuing 20 years. After all, the majority in Gross relied on definitions obtained from dictionaries published in 1966 and 1933.

In any event, I suspect the confusion over this recent lesson on the “ordinary meaning” of this critical preposition will soon be irrelevant. Relying on its narrow construction of the words “because of,” the High Court closed off to age-bias plaintiffs the mixed-motives route (available in Title VII cases) that would enable proof of employment discrimination when the prohibited bias was at least one, but not the only, motive for an adverse action. With so many older individuals in the workforce and the increased incidence of age-bias claims, I don’t think this higher standard for age-bias claims will remain the law for long. The 29-percent increase in EEOC age bias charges filed in 2008 over those filed in 2007 – a 48-percent jump from the number filed in 2005 – should provide enough momentum for Congress to take action.


Hospitals were subcontractors subject to OFCCP jurisdiction

June 22nd, 2009  |  Cynthia L. Hackerott

>The Department of Labor’s Administrative Review Board (ARB) has recently held that three hospitals were federal subcontractors subject to the equal employment opportunity and affirmative action obligations enforced by the Office of Federal Contract Compliance Programs (OFCCP), rejecting the hospitals’ assertion that the ARB’s 2003 decision in OFCCP v Bridgeport Hospital (ARB Case No 00-034; CCH OFCCP FEDERAL CONTRACT COMPLIANCE MANUAL ¶21,603) required a contrary ruling. In OFCCP v UPMC Braddock (DOL ARB, No 08-048, May 29, 2009), the US Office of Personnel Management (OPM) had a contract with UPMC Health Plan to provide medical coverage to US government employees. In turn, each of the three hospitals had an agreement with UPMC Health Plan to provide medical products and services covered by UPMC Health Plan. 

In Bridgeport Hospital, the Blue Cross/Blue Shield Association (Blue Cross) entered into a contract with OPM to provide health insurance to federal employees; Blue Cross then entered into a contract with Blue Cross of Connecticut to provide health insurance for federal employees in Connecticut, thus making Blue Cross of Connecticut a federal subcontractor. Subsequently, Bridgeport Hospital entered into a contract with Blue Cross of Connecticut to provide medical services and supplies to members of Blue Cross of Connecticut for a one-year period. The ARB found that Bridgeport Hospital was not a subcontractor because Blue Cross’ contract with OPM did not require Blue Cross to provide its policy holders with medical care. 

Following Bridgeport Hospital, many experts thought that hospitals would not generally qualify as subcontractors subject to OFCCP jurisdiction (see e.g. “NELI experts Fox, Biermann discuss recent OFCCP developments” in CCH OFCCP FEDERAL CONTRACT COMPLIANCE MANUAL Newsletter, December 5, 2003). But, in UPMC Braddock, the ARB distinguished Bridgeport Hospital:

“Unlike Blue Cross, the UPMC [Health Plan] is more than an insurer,” the ARB stated, noting that the UPMC Health Plan is an HMO that contracts with individual physicians, medical groups, and hospitals to provide benefits including medical services and supplies and surgical and anesthesia services, emergency services, mental health and substance abuse services, prescription drug benefits, and dental benefits. “Unlike Bridgeport Hospital, [the hospitals in the present case] contracted to provide ‘a portion of the [the UPMC Health Plan's] obligation’ to provide medical services and supplies under its contract with OPM,” the ARB wrote. 


Another Circuit Court rules on validity of two-member NLRB decisions

June 19th, 2009  |  David Stephanides

>This week, the Second Circuit ruled in support of well over 100 two-member NLRB decisions. The tally now stands at 3-1. The issue: whether a quorum of the Board can be constituted with just two of five members under Section 3(b) of the NLRA.

Joining the First and Seventh Circuits, the court, in Snell Island SNF v NLRB, believed the Board’s view “is a reasonable interpretation of the statute. Indeed, we commend the NLRB for its conscientious efforts to stay ‘open for business’ in the face of vacancies that it did not create and for which it lacked the authority to fill.”

As noted in Workplace Prof Blog, a decision from the Eighth Circuit will be forthcoming, making the issue even more destined for the Supreme Court. A Petition of Certiorari has already been filed in New Process Steel by the law firm Greenberg Traurig, P.A. “The D.C. Circuit [in Laurel Baye Healthcare v NLRB] correctly held that the NLRA does not permit the board to function with only two members. We believe that the Seventh Circuit’s decision is an incorrect interpretation of the act,” said Joseph W. Ambash, one of the attorneys representing New Process.

Here is a rundown of the cases on the matter to date.

For the Board:

And against:


Is federal anti-discrimination protection for breastfeeding women in workplace on the horizon?

June 17th, 2009  |  Deborah Hammonds

>Numerous states have provided women who breastfeed in the workplace with protection from discrimination while federal anti-discrimination protections have been absent. That may change, thanks to legislation recently introduced by New York Representative Carolyn Maloney (D). The Breastfeeding Promotion Act of 2009 (H.R. 2819) would amend the 1964 Civil Rights Act to provide anti-discrimination protections for women who breastfeed in the workplace. The Act would also require employers to provide a private space, other than a bathroom, where a woman can express breast milk and amends the Internal Revenue Code to provide employers up to $10,000 credit for expenses incurred.

“‘The Breastfeeding Promotion Act’ recognizes both scientific fact and the way Americans live now; human milk is the best nutrient for new babies—and most mothers have to go back to work during a child’s first year, when breastfeeding is most important,” Rep. Maloney said on June 11th during the announcement of the bill’s introduction.

“This bill will bring breastfeeding mothers under the protection of the 1964 Civil Rights Act, require employers with over 50 employees to provide a private space and unpaid time off during the workday for mothers to express milk, and sets standards for breast pump manufacture. It also provides for tax incentives for employers that establish private lactation areas in the workplace and tax credits for nursing mothers,” she said.

A similar bill (S. 1244) was introduced in the Senate by Oregon Senator Jeff Merkley (D).

“It’s not every day we have the opportunity to enact legislation that is so clearly a win-win for families and our nation. Making it easier for moms to breastfeed means we have healthier babies, stronger families and happier workers,” Sen. Merkley said. “I championed Oregon’s breastfeeding bill two years ago. I’m excited to see Oregon’s contribution to a nationwide movement embraced by Representative Maloney and all those who have long advocated the purely common sense notion that breast milk is best.”


$86 million judgment reversed in Starbucks’ tip-pooling suit

June 15th, 2009  |  Connie Eyer

>Is a Starbucks shift supervisor who works alongside baristas considered as just part of a customer service team when it comes to taking a cut of the pooled tips? Apparently so, a California appeals court ruled (Chau v Starbucks Corp, CalCtApp, June 2, 2009) when it recently reversed an $86 million judgment against Starbucks in a class action suit in which the trial court found the coffee chain violated state law by including the supervisors in tip pools.

The lower court’s ruling, the appellate court reasoned, was improperly based on a line of decisions addressing an employer’s authority to mandate that a tip given to an individual service employee must be shared with other employees. It noted that Starbucks’ shift supervisors are part-time employees who perform all the duties of a barista, along with having responsibility for additional tasks, including supervising and coordinating employees within the store. There is no decisional or statutory authority prohibiting an employer from allowing a service employee to keep a portion of the collective tip, the court said, in proportion to the amount of hours worked, just because the employee also has supervisory duties.

While acknowledging that sec. 351 of the Labor Code, which Starbucks was found to have violated, was enacted to prevent employees from having to give up their earned gratuities as a condition of employment, the court concluded that it was undisputed in this case that the tipping public intended to collectively tip both the baristas and the shift supervisors for their work as a “team.”