Posted on June 29, 2009 by Brian Molinari

Ricci v. DeStefano: Supreme Court Requires Employers to Show a "Strong-Basis-In-Evidence" That It Will Suffer Disparate Impact Liability

One much-anticipated decision in the employment law arena handed down on June 29 was Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), which I previously blogged about here.

From the SCOTUS LiveBlog:

10:01 a.m. Ricci result: Kennedy finds a violation of Title VII. An outright reversal 5-4.
10:02 a.m. Ricci is decided 5-4 on ideological lines. The middle ground suggestion of remanding for further proceedings is rejected.

Text of the full decision is here and a practical discussion written by my colleague is here. Attempting to reconcile the inevitable tension between disparate treatment and disparate impact, Justice Kennedy adopts the "strong-basis-in-evidence" standard. Writing for the Court (5-4) Kennedy noted: "We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. . . . Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them." Reconciling the two, the Court held: "[U]nder Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."

Side Bar: While cameras are still prohibited from the hallowed chambers of the U.S. Supreme Court, it has wholly embraced the blogosphere with LiveBlog feeds on the Court's release of decisions and other matters.
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Posted on June 25, 2009 by Brian Molinari

NY's Highest Court Rules That Independent Medical Examination May Give Rise to Claim of Medical Malpractice

In a decision handed down on June 24, 2009, New York's highest court, the Court of Appeals, ruled that a claim of "medical malpractice", and not ordinary negligence, may arise from an injury inflicted upon a person undergoing an Independent Medical Examination (IME). In New York, medical malpractice is governed by a shorter statute of limitation - 2 years, 6 months - while a claim of ordinary negligence has a 3 year statute of limitation. The decision is Bazakos v. Lewis, NY Slip Op. 112 (2009).

An IME is a discovery tool often used by defendants in personal injury actions which requires a plaintiff to undergo a medical examination by a physician designated by the defendant. See NY CPLR 3121. In Bazakos, the plaintiff had a previous pending lawsuit arising out of an automobile accident and during that suit was required to undergo an IME by Dr. Philip Lewis - a doctor designated by the defendant. Bazakos claimed that Dr. Lewis, during the IME, "took [Bazakos'] head in his hands and forcefully rotated it while simultaneously pulling," allegedly causing injury to Bazakos. Two years and 11 months after the IME, Bazakos sued Dr. Lewis for negligence, and Dr. Lewis moved to dismiss the action as untimely under the medical malpractice statute of limitations. The trial court dismissed the action; the Appellate Division later reversed the trial court's ruling, and held that because the doctor performing an IME and the person undergoing it do not have a physician-patient relationship, the action was not "for medical ... malpractice" and was therefore governed by the three year statute applicable to personal injury actions generally. The Appellate Division granted Dr. Lewis leave to appeal and certified the question to the Court of Appeals whether the Appellate Division's ruling was properly made.

Reversing the Appellate Division, the Court of Appeals held that "the relationship between a doctor performing an IME and the person he is examining may fairly be called a 'limited physician-patient relationship' -- indeed, this language is used in an American Medical Association opinion describing the ethical responsibilities of a doctor performing an IME (Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions, Opinion 10.03)." Therefore, the Court held, the claim that a doctor breached his duty of care while performing an IME "is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute of limitations."

The Bazakos decision is consistent with a decision rendered two months ago by the Arizona Court of Appeals, Ritchie v. Krasner, in which the Court held that an IME doctor in a workers compensation matter owed a duty to exercise reasonable medical care when assessing the condition of an injured worker.
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Posted on June 21, 2009 by Brian Molinari

Supreme Court Makes It Easier for Employers to Defend Age Discrimination Claims

The Supreme Court (5-4 decision) ruled on June 18, 2009 in Gross v. FBL Financial Services, Inc., that in an age discrimination claim under the Age Discrimination in Employment Act (ADEA), a claimant must prove, by a preponderance of the evidence, that his or her age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a claimant has produced some evidence that age was one motivating factor in that decision. This burden of proof is significantly more onerous than the standards for proving discrimination claims based on race, color, gender, national origin, and religion under Title VII of the Civil Rights Act. A more comprehensive analysis and discussion is provided here.
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