Some Interesting Employment Developments

The Impact of Gross v. FBL Financial Services, Inc.

A big issue since the Supreme Court's Gross opinion has been its rationale's application to other statutes (see my recent paper on this here). But, possibly more interesting is the majority's statement that the Court has never addressed the application of McDonnell-Douglas to ADEA cases. Most courts, subsequent to Gross, have said that the McDonnell-Douglas burden-shifting framework remains unchanged in ADEA and other statutes affected by the rationale of Gross. We collect some of those case citations in the paper. One district court (Bell v. Raytheon Co., 2009 U.S. Dist. LEXIS 67016 (N.D. Tex. July 31, 2009)) held that even after plaintiffs established a prima facie case of age discrimination, the burden did not shift to the defendant to articulate a legitimate non-discriminatory reason because they did not prove that age was the but-for cause of the adverse decision. As the courts continue to address this issue, it will be interesting to see whether, like the Bell court, they incorporate into the prima facie stage of McDonnell-Douglas a heightened but-for requirement.

Supreme Court Decides Mac’s Shell Serv., Inc. v. Shell Oil Products Co.

A unanimous Supreme Court on March 2nd rejected the franchisee argument in this case that there could be a constructive termination even though the franchisee never terminated the relationship with the franchisor. The Court similarly rejected the "constructive non-renewal" argument where the franchisee had signed a renewal agreement. Justice Alito, writing for the Court, references employment discrimination constructive discharge case law in one paragraph of the opinion. There does not appear to be anything in the opinion that unsettles existing employment discrimination constructive discharge law.

Verbal Complaint Under FLSA Held not to be Protected Activity

The Seventh Circuit in Kasten v. Saint Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009), petition for cert. filed (Jan. 12, 2010), held that a verbal complaint does not constitute protected activity under the FLSA, as the FLSA uses the phrase “file any complaint,” which the court held connotes the use of a writing.