ADEA

Goodykoontz v. Diamond’s Gentleman’s Club

Robert C. Lockwood
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Diamonds

Sometimes, fate smiles upon us.  Thus, in my never-ceasing efforts to provide entertaining, yet informative, updates on Alabama employment law, I was pleased to see the reported decision of Goodykoontz v. Diamond’s Gentleman’s Club, No. 15-0553-WS-B, 2016 WL 2743530 (May 10, 2016).  Goodykoontz discusses the perils of age discrimination in the gentleman’s entertainment industry.

Ms. Goodykoontz was retained as a dancer at Diamond’s Gentleman’s Club.  After starting work, she was asked her age and reported that she was “almost 41.”  After a shift, the general manager of the club “invited her not to come back.”  When Ms. Goodykoontz inquired further, the general manager said:  “You don’t fit the profile I’m wanting here.”  When Ms. Goodykoontz asked why, he “snarled”:  “Because YOU’RE TOO OLD!!!!”

Diamond’s Gentleman’s Club filed a motion to dismiss Ms. Goodykoontz’s complaint, but that motion was denied.  The club argued that it did not employ the sufficient number of employees to be subject to liability under the Age Discrimination in Employment Act and that Ms. Goodykoontz was an independent contractor instead of an employee.  Nevertheless, the federal judge reviewing the motion found sufficient allegations in the complaint to allow the action to proceed.

Goodykoontz is still in the early stages of litigation.  If the club can demonstrate that it does not employ 20 employees, or if it can prove that Ms. Goodykoontz was an independent contractor, it will probably win the case at summary judgment.  Nevertheless, if the club fails on those issues, the statements by the general manager are probably direct evidence of age discrimination that will allow the case to proceed to trial.

Judge Acker Slightly Softens His Stance on “But For” Causation

Robert C. Lockwood
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Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker.  Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.

EEOC Releases Guidance Expanding Scope of Retaliation.

Robert C. Lockwood
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On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims.  The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998.  While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority.  Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly.  The EEOC’s draft guidance can be found here:  EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief.  Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.”  If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired.  In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis.  Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016.  Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

Robert C. Lockwood
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Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints.  In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability.  When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination.  As a result of that uncertainty, employers are often sued under multiple federal statutes:  Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice.  In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated.  Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation.  Instead, he is making employees commit to one discrimination claim.  If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis.  Under Title VII, an employee can recover if his employer had “mixed motives” for termination.  As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win.  I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car:  LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals.  Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.