Employment Discrimination - Supreme Court Petitions 2022 Supreme Court Preview

Looking Ahead Employment Discrimination

Age Discrimination The viability of disparate impact as a method for proving discrimination prohibited by the Age Discrimination in Employment Act of 1967 (ADEA) continues to generate controversy in federal appellate courts. In we noted that the Supreme Court has twice denied certiorari on the important question whether jobseekers can assert a disparate impact claim challenging alleged age discrimination in hiring under the ADEA, — (AARP Foundation attorneys represented Mr. Kleber), vacated and contrary result entered on reh’g en banc, , cert. denied, 140 S. Ct. 306 (2019), and , vacated and contrary result entered on reh’g en banc, , cert. denied, 137 S. Ct. 2292 (2017). We also noted that in both Kleber and Villarreal, en banc U.S. Courts of Appeals vacated panel decisions recognizing a disparate impact age claim by an outside applicant, and that it was likely the Court would take up this issue absent Congressional action. On July 15, 2021, (“POJA”), which, if enacted, would amend Section 4(a)(2) of the ADEA to ensure that older job applicants could bring mixed motive disparate impact claims to challenge unreasonable hiring practices that harm them. Since last year, Congress has not enacted POJA and no other U.S. appeals court has considered the issues posed by Kleber and Villarreal. However, the Fourth Circuit has joined the Seventh and Eleventh in tangling with disparate impact issues under the ADEA. A panel of the Court of Appeals ruled 2-1 that Section 15a(a) of the ADEA, , which covers Federal employees, does not permit a claim founded on a disparate impact theory of liability, notwithstanding the very broad language of the ADEA’s Federal-sector provision. Then, in effect following the example of appellate review of Section 623(a)(2), the full Fourth Circuit granted a petition for en banc review and vacated the panel’s ruling. , . AARP and AARP Foundation filed an supporting Jane DiCocco’s petition for rehearing. Then, in early August 2022, the Department of Justice, the defendant in the case, lodged a letter with the Fourth Circuit changing its position and declaring its view, consistent with longstanding litigation positions taken by the U.S. Equal Employment Opportunity Commission, that federal-sector ADEA plaintiffs may challenge hiring discrimination through a theory of disparate impact. The Fourth Circuit recently vacated and remanded the case to the district court to reconsider Ms. DiCocco’s claims. Disability Discrimination The viability of disparate impact claims may pose an even more likely subject of attention for the Supreme Court in disability employment discrimination cases in the next year or several years. This is so because the Court just last term narrowly avoided the question whether disparate impact claims may be brought under , and . After the Ninth Circuit upheld such a claim in , the Supreme Court granted certiorari to review the question, but then dismissed the case, , when the parties settled. Last year, it appeared the Court was primed to address a great variety of difficult legal questions raised for employers by the COVID-19 pandemic. However, thus far, many such questions, including the extent to which the pandemic has altered judicial skepticism regarding telework and leave as reasonable accommodations under the Americans with Disabilities Act and the Rehabilitation Act, have yet to percolate up to the U.S. Courts of Appeals. One case we highlighted last year presenting a controversial issue of a medical employer’s response to the COVID-19 pandemic, (dismissing wrongful discharge claims by 117 hospital employees alleging that the Hospital’s vaccination requirement violated their right to refuse to comply with dangerous and experimental medical procedures), was affirmed this past summer, . The Court of Appeals entered judgment July 5, 2022. As of the time this preview went to press, no petition for certiorari had been filed. The First Circuit upheld another mandatory hospital COVID-19 vaccination policy in . Although the plaintiffs unsuccessfully sought emergency relief in the Supreme Court after the Court of Appeals denied injunctive relief pending appeal, see , the plaintiffs declined to seek certiorari. Dan Kohrman

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