Discrimination Under the ADEA: Reducing Work Schedules Is Not Enough
December 24, 2003
For private and public universities, the case of Boise v. New York University (Boise) offers clear and compelling guidance on the standards imposed on faculty members who are suing a college or university for employment discrimination. In Boise, the United States District Court of the Southern District of New York reviewed the requirements for a claim of discrimination under the Age Discrimination in Employment Act (ADEA).
A senior professor at NYU’s Robert F. Wagner Graduate School of Public Policy sued the university, alleging that it had created a hostile working environment under the ADEA by reducing his course schedule and failing to offer what the professor deemed an appropriate amount of praise and commendation. The professor also alleged that NYU retaliated against him for bringing an EEOC action.
Finding for NYU and noting that the ADEA does not provide for punitive damages, the court meticulously laid out the standard for bringing an employment discrimination action.
The employee bears the initial burden of proving a prima facie case of discrimination, proving that he or she:
(1) is a member of a protected class
(2) was qualified for his position
(3) suffered an adverse employment action
(4) under circumstances giving rise to an inference of discrimination
If the employee meets this preliminary burden, the employer must offer a legitimate, non-discriminatory reason for its actions in order to rebut the inference of discrimination resulting from the employee’s proof.
For the case to continue after the employer has provided a legitimate, non-discriminatory reason for its actions, the employee must come forward with strong evidence that the employer’s reason is merely a pretext for actual discrimination. This evidence must prompt the court to not merely disbelieve the employer, but to affirmatively embrace the employee’s account.
Adverse employment action
An employment action is not adverse unless it creates a material change in the terms and conditions of employment. The change must be “more disruptive than a mere inconvenience” or modification of work responsibilities. While these changes need not be quantifiable, they must do more than merely make an employee unhappy. Materially adverse changes include termination of employment, demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits or significantly diminished responsibilities. Reducing the professor’s teaching load from five courses to four, the court held as a matter of law, has no material effect on the conditions of his employment, and therefore cannot be considered an adverse employment action for purposes of the ADEA.
Mixed motives
Although the court did not agree that the case involved “mixed-motive” discrimination, it found that, even if the employee had evidence of discriminatory treatment, NYU had provided undisputed evidence that it would have taken the challenged action regardless of motive. Like other colleges and universities, the court found NYU was entitled to a degree of deference in the exercise of its academic judgment,
Hostile environment
Turning to the professor’s claim of a hostile work environment, the court held that there was no proof that the workplace had become permeated with discriminatory intimidation, insult and ridicule sufficiently pervasive or severe that it altered the professor’s working conditions. The Boise court instead held that personality conflicts were insufficient to support a hostile work environment claim. The requirement for severity and pervasiveness of discriminatory employer conduct prevents courts from becoming “court[s] of personnel appeals.”
There was no evidence, the court concluded, showing that the university acted against the professor on the basis of the professor’s age.
Retaliation
Finally, the court analyzed the professor’s allegation of retaliation. The standard for a retaliation claim is a showing by plaintiff that
(1) the employee engaged in protected activity
(2) the employer was aware of this activity
(3) the employer took adverse action against the plaintiff
(4) that a causal connection exists between the protected activity and the adverse action
Finding no adverse action against the professor, and no causal relationship between the alleged adverse action and any protected conduct, the court found no basis for a retaliation claim. However, even if there were a showing that the employee’s protected activity was followed closely by discriminatory treatment, the deference due to colleges and universities in its exercise of academic judgment would have defeated the employee’s claim of retaliation.
Colleges and universities are governed by the same scheme of employment discrimination law that regulates other employers. Colleges and universities also have a degree of discretion in the exercise of academic judgment that applies to many actions that affect the employment conditions of faculty members. While required to comply with the federal standards of employment discrimination laws, colleges and universities will ordinarily receive special deference from reviewing courts. Such deference helps preserve and protect the unique role that institutions of higher education play in society.
For more information, e-mail Shawn Johnson at shawn.johnson@hklaw.com or call toll free, 1-888-688-8500.
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