by Bradley Parsons
Staff Writer
When John Duvall started practicing employment law in 1985, a workplace discrimination complaint was most likely a matter of race. Today the complaints are more likely to be about sex.
Duvall, a partner in the local office of Ford and Harrison, has kept a close eye on the field and on the Supreme Court decisions that have shaped it over the last two decades. He’s authored multiple articles on the subject for the Mercer Law Review, his alma matter’s journal.
In this year’s article, Duvall describes the past year as a slow one for significant Supreme Court decisions. In part that’s due to circumstance, but it’s also an indication that past decisions and legislative remedies have helped to make the office a more accepting place for minorities and women, he said.
“There’s no question there has been progress made,” said Duvall, who represents management in labor and employment law. “The whole notion of equal employment opportunity and equal pay has been embraced. Instances of discrimination are more anomalies.
“Back in the ‘60s it’s irrefutable that discrimination in many occupations was systemic. That doesn’t exist as much any more. In cases that are more subtle, there’s less critical need for the court to weigh in on those issues.”
It’s not that workplace discrimination has disappeared. But complaints now are more likely to involve subtle behavior that could lead to different interpretations in the workplace and in the courts.
“Any sort of touching could be perceived as offensive. A pat of the back could be seen as offensive. It often comes down to the perception of the objective of the unwelcome behavior, to the nuance of the touch.” said Duvall. “What might be a lingering caress to one person might be a pat on the back to someone else.”
One of the significant decisions handed down by the Court last year related to the hostile workplace environment that can be created by severe and pervasive harassment.
The Court’s 2004 decision in Pennsylvania State Police v. Suders affirmed the applicability of constructive discharge to sexual discrimination cases. Constructive discharge essentially means that an employee was forced to leave a job due to an unreasonably difficult work environment.
Recent decisions have also been handed down limiting the application of the Age Discrimination and Employment Act. Duvall said the Court’s decisions are trending away from the use of age discrimination complaints under the act by younger employees.
The legislation was intended as statutory protection for people over age 40, who are discriminated against in the workplace due to their advancing age. Duvall questioned whether the act should provide protection for young workers who feel their opportunities are limited due to age. Lack of experience could be a legitimate consideration in hiring and promotions, he said.