Friday, September 23, 2011

Fifth Circuit Holds that a Hostile Work Environment Claim May Be Brought Under the ADEA

Hostile work environment claims are typically brought under Title VII, which is to say that such claims typically arise out of the plaintiff’s membership in one or more of Title VII’s protected classes – race or color, national origin, gender (including pregnancy), and/or religion.  However, the question is not entirely settled as to whether hostile work environment claims may be brought under the ADEA – that is, where the alleged hostile work environment is based on the fact that the plaintiff is 40 or older.  The Fifth Circuit, considering this issue as a matter of first impression, recently answered the question in the affirmative in Dediol v. Best Chevrolet, Inc., No. 10-30767, 2011 U.S. App. LEXIS 18819 (5th Cir. Sept. 12, 2011) (Stewart, J, decided by quorum before Judges Stewart and Smith, due to the death of Judge Garwood in July of 2011).
In Dediol, the Court noted that, while it had never before held that Title VII can be extended to address a claim for hostile work environment based on age, on at least two prior occasions, it had heard cases involving hostile work environment claims brought under the ADEA. See Mitchell v. Snow, 326 Fed. Appx. 852, 854 (5th Cir. 2009); McNealy v. Emerson Elec. Co., 121 Fed. Appx. 29, 34 n.1 (5th Cir. 2005).  However, in both Mitchell and McNealy, the Court affirmed the district courts’ grant of summary judgment in favor of the employer, and did not reach the question of whether hostile work environment claims could be brought under the ADEA.  The Mitchell and McNealy Courts simply held that, even assuming such claims were available, the plaintiffs had nevertheless failed to satisfy their burdens of production.  The Dediol Court further noted that both the Seventh and Ninth Circuits had considered such cases, but that those cases had also not expressly ruled upon the issue in question. See Sischo-Nownejad v. Merced Cmty Coll. Dis., 934 F.2d 1104, 1109 (9th Cir. 1991); Young v. Will Cty. Dep’t of Pub. Aid, 882 F.2d 290, 294 (7th Cir. 1989).
In holding that there is indeed such a claim – that plaintiffs can bring a hostile work environment claim based on age discrimination under the ADEA – the Fifth Circuit in Dediol adopted the reasoning of the Sixth Circuit in Crawford v. Medina General Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996):
In Crawford, the Sixth Circuit held that a claim for hostile work environment is cognizable under the ADEA. 96 F.3d at 835. The Crawford Court reasoned that the ADEA and Title VII share common substantive features and also a common purpose: “the elimination of discrimination in the workplace.” Id. at 834. The Sixth Circuit explained its decision this way: “the broad application of the hostile-environment doctrine in the Title VII context; the general similarity of purpose shared by Title VII and the ADEA; and the fact that the Title VII rationale for the doctrine is of equal force, all counsel” the result that a claim for hostile work environment based on age is recognized under Title VII. Id. We adopt the Sixth Circuit's reasoning here.
We now hold that a plaintiff’s hostile work environment claim based on age discrimination under the ADEA may be advanced in this court. A plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer. Id. at 834-35.
In addition to the Fifth and Sixth Circuits, at least one other Circuit (the First) has also held that hostile work environment claims can be brought under the ADEA.  See Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008); Rivera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001).  But, there is still an important distinction between hostile work environment claims which are brought under the ADEA as opposed to Title VII – the damages which are available under the two statutes are not completely identical.  As the First Circuit noted in Collazo:
Although we have recognized hostile work environment claims under the ADEA, see Rivera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001),  it is well-established that the statute does not allow compensatory damages for pain and suffering, Vazquez v. E. Air Lines, Inc., 579 F.2d 107, 109 (1st Cir. 1978); see also Comm’r of Internal Revenue v. Schleier, 515 U.S. 323, 326, 115 S. Ct. 2159, 132 L. Ed. 2d 294 (1995) (noting unanimity among the circuits on this principle). Modeled after the Fair Labor Standards Act of 1938, the remedy provisions of the ADEA allow awards for “only those pecuniary benefits connected to the job relation,” including unpaid wages or overtime compensation. Kolb v. Goldring, Inc., 694 F.2d 869, 872 (1st Cir. 1982) (internal quotation marks omitted); see also 29 U.S.C. § 626(b); McKennon, 513 U.S. at 357. Aside from monetary relief, federal courts may also grant “such legal or equitable relief as may be appropriate to effectuate the purposes of the Act,” including reinstatement or promotion, if warranted. 29 U.S.C. § 626(b).
535 F. 3d at 44-45 (footnotes omitted).  By contrast, the Collazo Court noted that:
Title VII permits claims for compensatory damages for emotional distress and pain and suffering arising from a discriminatorily hostile or abusive work environment. 42 U.S.C. § 1981a(a)-(b); see Villescas v. Abraham, 311 F.3d 1253, 1260 (10th Cir. 2002)  (“Congress had another opportunity to enlarge the remedies available under the federal employee ADEA when it amended Title VII and other Acts in the Civil Rights Act of 1991 to permit compensatory damages, subject to caps, and it conspicuously chose not to do so for ADEA claims.”).
535 F. 3d at 44 n.3.
This distinction in the availability of pain and suffering and emotional distress damages begs an important question –what is there to gain from bringing a hostile work environment claim under the ADEA?  It is typically difficult to demonstrate that a plaintiff suffered any significant amount of economic damages (for example, lost wages) as a result of being subjected to a hostile work environment.  The primary harm which arises from such claims is typically of the non-economic sort (pain and suffering, emotional distress, and the like). In Dediol, the plaintiff was able to get around this hurdle by claiming that he had been constructively discharged (a claim which would entitle him to lost wages), and the Fifth Circuit specifically held that he had presented a triable issue of fact as to whether he had been constructively discharged.
It will be interesting to see what the outer limits will be in terms of the other contexts in which hostile work environment claims will be allowed.  It appears that the main issue which will be relevant to the resolution of that question will be the level of similarity between Title VII and the other statutes which plaintiffs attempt to use as a basis for bringing hostile work environment claims.  As noted above, the Crawford and Dediol opinions were based primarily on the observation that Title VII and the ADEA “share common substantive features and also a common purpose.” 
Similarly, in holding that the ADA creates a cause of action for hostile work environment harassment, the Fourth Circuit based its reasoning primarily on similarities between the language and purposes of Title VII and the ADA.  Fox v. Gen. Motors Corp., 247 F.3d 169, 175-176 (4th Cir. 2001).  In terms of the similarities in language, the Fox Court noted in particular that both Title VII and the ADA prohibit discrimination as to the “terms, conditions, [and/or] privileges of employment,” and that “[t]he Supreme Court has expressly held that [this] language creates a cause of action for hostile work environment under Title VII.” 247 F.3d at 175.  Note also that the same language is contained in the ADEA.
By contrast, in Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011), the Court held that the statutory language of USERRA did not cover hostile work environment claims, noting differences between the language of USERRA prohibiting the denial of “benefits of employment,” versus Title VII’s prohibition of discrimination with respect to “terms, conditions, and privileges of employment.”  The Carder Court concluded that the USERRA language would not permit a hostile work environment claim absent a denial of a tangible benefit. 
So, in determining whether any given statute will allow for a cause of action for hostile work environment, it appears that the language and purpose of the relevant statute will be of paramount importance.
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