As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases. Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case. These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.
We have discussed in this blog before the migration of discrimination claims to Iowa state courts rather than federal courts. The trend is driven by a number of factors, including the recognition in 2005 of the right to a jury trial under the Iowa Civil Rights Act (ICRA) and the greater propensity of federal courts to grant summary judgment.
Another important factor in a plaintiff’s decision to choose state or federal court will be the type of discrimination alleged. For example, as a result of the ADA Amendments, disability claims are more likely to end up in federal court. Just the opposite is true, however, with respect to age discrimination claims. The Eighth Circuit’s recent decision in Clark v. Matthews International Corporation confirms that assessment.
The Plaintiff in Clark alleged age discrimination under both the federal Age Discrimination in Employment Act (ADEA) and the Missouri Human Rights Act (MHRA). The trial court granted summary judgment to the employer on both claims. The Eighth Circuit affirmed the grant of summary judgment on the ADEA claim, but reversed on the MHRA claim. The Court found the plaintiff’s evidence was not sufficient to generate a genuine dispute under the ADEA’s “but for” standard. However, the court declined to rule as a matter of law on the MHRA claim. Under the MHRA, a plaintiff must prove age was a “contributing factor” in the decision, which the court concluded was less demanding than the ADEA’s standard.
The evidence in question included the following:
- Plaintiff’s supervisor asked him if he was “just trying to make it to retirement.”
- The same supervisor suggested to another employee that he could “always become a Wal-Mart greeter.”
- The company sent unsolicited mailings from the AARP to employees when they turned 56 years old
The test under the ICRA is whether age was “a motivating factor” in the employment decision. This is similar to the standard under the Missouri law, and certainly less demanding that the “but for” test under the ADEA. If Clark is any indication, it will not take much less evidence to survive summary judgment for an ICRA claim than an ADEA claim.
The authors contend it is becoming more difficult for employers to win on summary judgment, particularly in state court. Nonetheless, they believe the benefits of filing a summary judgment still outweigh the cost. The work that goes into a summary judgment will have to be done anyway as part of trial preparation. Even if all claims are not dismissed, summary judgment can weed out some of the weaker claims, making the case simpler to try. Finally, a motion for summary judgment forces plaintiffs to tip their hand about their theory of the case and the evidence they rely upon.
I agree that the summary judgment is an important weapon in the defense lawyer’s arsenal in an employment case. We recently wrote about the chances of an employer winning at trial–and the statistics were not heartening. On the other hand, a study of the federal courts published last year shows that summary judgment is granted to defendants in discrimination cases more than in any other type of civil case in the federal system. Locally, anecdotal evidence suggests that summary judgments are granted in a very high percentage of cases in federal court s in Iowa. The Eighth Circuit also has a reputation for being very "defendant friendly" in employment cases. Almost all of the employment cases the Eighth Circuit decides are appeals of summary judgments, and most of the time the trial court’s ruling is affirmed.
Of course, it is a different story altogether in State Court in Iowa. An employer’s motion for summary judgment in State Court is denied more often than not. So much so that many plaintiff’s lawyers assert claims only under the Iowa Civil Rights Act so as to avoid having the case removed to federal court. I attribute the difference in outcome to a couple of factors. First, state court judges, particularly those in more rural areas, are not as familiar with employment discrimination law. Second, state court judges have less access to law clerks compared to their federal counterparts, and it is thus much more difficult to digest factually complex motions for summary judgment and conduct the intense legal research that is often required. My cynical side says that summary judgments are sometimes denied because judges know the case is likely to be settled anyway, and it is not likely to ever reach the desk of an appellate court.
So, should employers file a motion for summary judgment in employment cases? The following statement of attorneys Bult and Summers is a fairly good summary of my opinion on the subject:
Employment litigation can sometimes feel like pure, unadulterated blackmail, and the bleak news presented in this article about the state of summary judgment dismissals provides only adds to the arsenal in the war against employers.
But the reality is in employment litigation, a good offense is the best defense.
An employer who has proper policies and procedures in place, makes reasoned and fair decisions, and who makes significant efforts to follow the law will be a much better position to defend against employment litigation and will have a much better shot at being “that case” that even a state court judge will dismiss on summary judgment.
While it is true that even frivolous lawsuits will make it to court, an employer must then analyze how to contain its costs and minimize its risks.
Just days after the Iowa Supreme Court’s ruling legalizing same sex marriage, at least one media outlet is reporting that Iowa employers are scrambling to determine whether they need to adjust their employment policies to comply with the ruling. Of immediate concern are employee benefit programs that provide coverage for spouses, and policies governing family and medical leave.
An employee in Iowa is already protected from discrimination based upon sexual orientation or gender identity. However, that protection did not necessarily require an employer to extend benefits to a same sex partner in the same way it would the spouse of a married employee. The new ruling could change that requirement. To the extent an employer grants benefits to the spouse of an employee, spouse may now include a person of the same sex. It is important to note, however, that many employee benefits are governed by federal law, which is not necessarily impacted by the Iowa Court’s ruling.
Employers should also adjust their practices concerning Family and Medical Leave Act compliance. An covered employee under FMLA has the right to job protected leave to care for a "spouse" with a serious health condition. FMLA itself defines "spouse" as "a husband or wife as the case may be". However, the Department of Labor Regulations interpreting FMLA look to the law of the state where the employee resides to determine whether a person is a "spouse."
Employers are advised to consult with counsel and with their employee benefit provider when adjusting policies and practices to comply with the Court’s ruling.