A Close Look at ADEA Mixed-Motives Claims and Gross v. FBL Financial Services, Inc.

In Gross v. FBL Financial Services, Inc., the U.S. Supreme Court held that a plaintiff bringing a claim for disparate treatment under the Age Discrimination in Employment Act (ADEA) could not shift the burden of persuasion to the defendant, even after the plaintiff had established that age was a motivating factor in the defendant’s adverse employment decision. Prior to Gross, ADEA plaintiffs had two available frameworks to prove claims for intentional age discrimination: the three-prong McDonnell Douglas Corp. v. Green framework that creates an inference of discrimination using a prima facie case, and the burden-shifting, “mixed-motives” analysis laid out in Price Waterhouse v. Hopkins, which the Gross Court rejected for ADEA plaintiffs. This Note urges Congress to intervene and amend the ADEA to be consistent with the burden-shifting framework codified in § 107 of the Civil Rights Act of 1991. This Note explores the purposes behind the ADEA, including its relationship with Title VII, and looks at Supreme Court cases that shaped the analysis of disparate treatment discrimination claims prior to Gross. This Note explores the majority and dissenting opinions in Gross and how subsequent courts have treated ADEA cases in the wake of the Supreme Court’s decision. Ultimately, this Note concludes that Gross does not necessarily alter the McDonnell Douglas framework for ADEA plaintiffs, but that Congress should step in and amend the ADEA so that plaintiffs may bring mixed-motives claims. If Congress were to amend the ADEA in this way, the causation standards under Title VII and the ADEA would be identical and the ADEA’s goals of deterring discrimination and compensating victims would be fulfilled

Employment Arbitration at the Crossroads: An Assessment and Call for Action

Arbitration agreements must be on equal footing with all types of contracts. This stark reality demands that the various stakeholders in the arbitration community converge in the interest of designing and institutionalizing arbitration mechanics and processes that, as a start, exceed the minimum requirements to avoid arguments of substantive unconscionability and, more broadly, provide the fair, just, and accountable alternative dispute resolution system the FAA and the U.S. Supreme Court have indicated it can be. This paper seeks to guide this next stage of the debate by first reviewing the doctrinal developments over the past thirty years that led to a settled state of arbitration law. We then exhort the various stakeholders to collectively take up the challenge of this next stage. In particular, we hope to prompt that cooperation by laying out the essential elements of a fair and just employment arbitration mechanism

Table of Contents - Issue 1

Table of Contents - Issue

Bizarro Statutory Stare Decisis

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently and the strong presumption of statutory stare decisis. This convergence of circumstances led to the odd result of duplicating the congressionally disfavored Wards Cove interpretation. I use the comic book story of Bizarro, Superman’s imperfect duplicate, as an allegory for the Smith Court\u27s flawed invocation of statutory stare decisis to duplicate Wards Cove, labeling it Bizarro statutory stare decisis. None of the justifications for the regular presumption of statutory stare decisis supports the result in Smith. Furthermore, Bizarro statutory stare decisis interferes with the proper balance of power between Congress and the Court and implicates the countermajoritarian difficulty of elevating the Court’s interpretations over Congress’s expressed preferences. The paper explores other contexts in which Bizarro statutory stare decisis could wreak havoc. Finally, I present an alternative to Bizarro statutory stare decisis. In situations like Smith, the Court should not treat an overridden interpretation as binding precedent, but should interpret the statute before it as a matter of first impression. In doing so, an overridden interpretation should not be duplicated without clear textual, purposive, or historical evidence that the overridden interpretation is more appropriate this time around. The paper concludes by applying this alternative to Smith and explaining why Wards Cove should never have been revived

Business, Human Rights, and the Promise of Polycentricity

Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG) John Ruggie referred to the Protect, Respect, and Remedy Framework (PRR Framework) and the UN Guiding Principles on Business and Human Rights (Guiding Principles) as a polycentric governance system. However, the exact meaning of this phrase has not been very carefully elucidated. This Article analyzes that description in the context of the deep and varied body of literature on polycentric governance and evaluates the PRR Framework in that light. In particular, this Article uses a case-study approach, analyzing the emerging polycentric governance system in the context of the sourcing of certain minerals from conflict-affected countries in the African Great Lakes region to explore these issues. The conflict minerals regulatory regime incorporates a notable number of the concerns and opportunities SRSG Ruggie highlighted and promoted in the PRR Framework and Guiding Principles. This Article then recommends further study of the concepts explored herein as applied to the business and human rights sector generally and conflict minerals regulation specifically. Ultimately, this Article argues that, given the relative paucity of binding international law regulating the human rights aspects of business and the unlikelihood of substantial multilateral progress in the near future, the success of the PRR Framework and Guiding Principles may well depend on whether the promise of their polycentric nature can be fully realized