Eleventh Circuit Follows Gross in ADEA Case and Reverses Summary Judgment

In Mora v. Jackson Mem. Found., Inc., 2010 U.S. App. LEXIS 3668 (11th Cir. Feb. 23, 2010), the Eleventh Circuit Court of Appeals followed the recent United States Supreme Court decision in Gross v. FBL Financial Service, 129 S. Ct. 2343 (2009) and, applying the "but for" age standard, reversed a grant of summary judgment to an employer in the age discrimination case. Critically, the Court recognized that because there was a factual dispute as to whether an ageist comment was made [the alleged bad actor denied the comment was made], the issue and case should have been submitted to a jury. The Court reiterated the oft-cited standard that all inferences should be drawn in favor of the plaintiff-employee and remanded the matter for trial.

EEOC Publishes 2009 Charge Statistics

Recently, the Equal Employment Opportunity Commission ("EEOC") issued statistics for employment discrimination Charge filings in 2009. See eeoc.gov/eeoc/statistics/enforcementcharges.cfm. Perhaps surprisingly, the total number of discrimination charges filed with the EEOC -- 93,277 -- receded from the historic high -- 95,402 --filed in 2008. Employment discrimination Charges alleging discrimination based on disability and retaliation, however, increased substantially year-over-year. With the passage of the the ADA Amendments Act of 2008, effective January 1, 2009, it would appear disability discrimination claims in the workplace will continue to increase in the near term. For more information about 2009 Charge filings, please visit www.bucksteinlaw.com.

FLSA Collective Action Compelled to Arbitration

Within the last few days, a Southern District of New York Judge granted a commodity broker's motion to compel arbitration of a putative FLSA collection action against the firm. See Arrigo v. Blue Fish Commodities, 09-Civ-07518. There should be little doubt at this point that FLSA collective action complaints may be the proper subject of a properly prepared motion to compel arbitration. Indeed, that proposition is true even if the arbitration forum prohibits class actions, as opposed to collective actions. For that point, see Chapman v. Lehman Brothers, a Southern District of Florida case handled by the author of this Blog, holding that NASD n/k/a FINRA Rules do not preclude arbitration of FLSA collective action claims. See Chapman v. Lehman Brothers, Inc., 279 F. Supp. 2d 1286 (S.D. Fla. 2003).