McKennon v. Nashville Banner Publishing Co.

McKennon v. Nashville Banner Publishing Co.

115 S.Ct. 879 (1995)

Based on documentation from Business: Its Legal, Ethical, and Global Environment by Marianne Jennings, 1997

Facts

For 30 years, Christine McKennon (petitioner) worked for Nashville Banner Publishing Company (respondent). Christine was terminated as part of a work reduction plan at the age of 62.

McKennon filed suit alleging her termination was a violation of the Age Discrimination in Employment Act (ADEA).

During depositions taken by Banner, McKennon testified that during her final year of employment, she had copied several confidential document bearing upon the company's financial condition as a form of "insurance" and "protection." After the deposition disclosures, Banner sent McKennon a new termination notice, asserting that removal and copying of the documents was in violation of her job responsibilities.

Nashville Banner conceded its discrimination in district court, but was granted a summary judgement because of McKennon's misconduct. The court of appeals affirmed the decision and McKennon appealed.

Discrimination Acts and Defenses to Charges

There are a number of Congressional acts passed to regulate employers ability to hire and fire. The primary focus of these acts is to reduce discrimination thereby leveling the playing field for people to gain employment and advance within a company. These acts are normally enforced by either the Equal Employment Opportunity Commission (EEOC) or the US Department of Labor. The enforcement agency investigates any claims filed by a person who believes they have been the object of discriminatory employment practices and determines what additional actions the agency will take.

The normal course for an EEOC case is:

An EEOC complaint is filed either by an employee (normally within 180 days of the alleged violation) or by the EEOC itself (no time limit)
The EEOC notifies the employer with 10 days after which the employer is prohibited from taking any retaliatory action against the charging employee
The EEOC has 180 days from notification to take action on the matter which includes investigation and possible settlement between the employer and the employee
If the complaint is not resolved, the employee may demand a right-to-sue letter after the 180 day time period after receiving which, the employee may then institute legal proceedings even if the EEOC has determined there are no merit to the case

Table 1: Major Employment Discrimination Statues (from Jennings, 1997)

Statute	Date	Provisions
Civil Rights Acts of 1866 and 1870 42 USC	1866 1870	Prohibited intentional discrimination based on race, color, national origin, or ethnicity; permit lawsuits
Equal Pay Act 29 USC	1963	Prohibits paying workers of one sex different wages from the other when the jobs involved substantially similar skill, effort, and responsibility; Wage and hour Division of Department of labor enforces; private lawsuits permitted; double damage recovery for up to three years' wages plus attorney fees.
Civil Rights Act of 1964 42 USC	1964	Outlaws all employment discrimination on the basis of race, color religion, sex, or national origin; applies to hiring, pay, work conditions, promotions, discipline, and discharge; EEOC enforces; private law suits permitted; costs and attorney fees recoverable
Age Discrimination in Employment Act 42 USC	1967	Prohibits employment discrimination because of age against employees over 40 and mandatory retirement restrictions; EEOC enforces; private lawsuits permitted; attorney fees and costs recoverable.
Equal Employment Opportunity Act 42 USC	1972	Expanded enforcement power of EEOC
Rehabilitation Act 29 USC	1973	Prohibits employment discrimination on the basis of handicaps; enforced by the US Department of Labor
Pregnancy Discrimination Act 42 USC	1975	Prohibits discrimination on the basis of pregnancy and childbirth
Americans with Disabilities Act 42 USC	1990	Prohibits discrimination against the handicapped
Civil Rights Act of 1991 42 USC	1991	Clarifies disparate impact suit requirements; clarifies the meaning of "business necessity" and "job related"; changes some Supreme Court decisions (Wards Cove); punitive damage recovery
Glass Ceiling Act 42 USC	1991	Creates commission to study barriers to women entering management and decision-making positions
Family and Medical Leave Act 29 USC	1993	Establishes 12 weeks of leave for medical or family reasons; enforced by the US Department of Labor

There are a number of defenses that a business may use to defend against a charge of discrimination in court:

Bona Fide Occupational Qualification such as a particular religious belief for a church pastor
Seniority or Merit Systems so long as the system applies to all employees, follow industry custom or pattern, and the system must not have originated in or perpetuate racial discrimination
Aptitude and Other Tests so long as the tests can be related to successful job performance
Misconduct of the employee

McKennon v. Nashville Banner Publishing Co. constrains the misconduct defense. The basis of the court's reasoning is that discrimination is unlawful and employees should be encouraged to come forth with valid complaints. If information uncovered during the discovery process which is not germane to the charge of discrimination can be used to retroactively justify the employer's actions, termination of an employee in this case, the discovery process can become so onerous as to reduce the effectiveness of the anti-discrimination acts.

The opinion points out that "proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made." Basically, where an employer seeks to rely on after-acquired evidence of misconduct as a justification for the discriminatory practice, the employer must first establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of the misconduct.

My Opinion

I believe that the court was correct in looking at the discrimination as a separate issue from the misconduct. If my reading of the case is correct, the court said that misconduct may be reason for a court to refuse to allow reinstatement of the discharged employee due to the misconduct but that penalties for the discrimination action still apply.