Stumbling at the Finish Line: Employment Discrimination and the Utah Supreme Court in Burton v. Exam Center Industrial

I. INTRODUCTION "Bias Allowed at Small Utah Firms"1 announced the arrival of the Utah Supreme Court's closely contested (three-two) decision in Burton n. Exam Center Industrial.2 While the court correctly chose between an individual's right to be employed regardless of age and the Utah legislature's express intent to limit that right, the majority's failure to clearly analyze Burton's claim made its opinion appear poorly reasoned and its decision more difficult than necessary. Normally, such a failure would be harmless. However, as the issues that faced the court in Burton continue to surface in the future, the need for clear and complete reasoning will become increasingly apparent. This Note begins in Part II with a discussion of the relevant portions of the Utah Antidiscrimination Act (UADA) and overviews the tort of discharge in violation of a public policy. Part III then briefly explains the factual and procedural background of the Burton decision. Part IV analyzes the reasoning of the majority and dissenting opinions, focusing on two specific issues. First, it compares the strengths of the policy-related arguments made by the majority and dissent in Burton, concluding that the majority offered the stronger arguments. Second, it examines Burton's claim in relation to established Utah law governing the tort of discharge in violation of a public policy step the Burton majority never took. This analysis shows that the Utah Supreme Court rightfully rejected Burton's claim but failed to carefully compare Burton's claims with the tort's requirements. Part V offers a brief conclusion. This Note contends that, while the court reached the correct decision in Burton, a lack of thorough analysis of one key area of law makes the opinion appear more difficult than it truly was. Like viewing a runner, who after dominating a race, stumbles at the finish line and barely finishes ahead of the nearest competitor, one walks away from the Burton majority opinion with the impression that the race was much closer than it really was: II. BAcKGROUND To understand the issues that faced the Utah Supreme Court in Burton, some understanding of the UADA and the tort of discharge in violation of a public policy is essential. This section recounts the relevant provisions of the UADA and explains the history and elements of the tort at common law. A. The UADA3 When an employee wishes to bring a claim of employment discrimination based on age, the DADA provides the employee's exclusive state law remedy.4 Thus, the employee cannot also raise the tort claim of discharge in violation of a public policy. The UADA governs both the process and remedies available to the employee. This section reviews the legislative history of federal legislation upon which the UADA is based, some of the statute's essential provisions, and the extensive administrative process that an employee must follow to bring an employment discrimination claim under the statute. 1. Legislative history by inference Unfortunately, the legislative history of the DADA was not recorded. However, as the DADA is based on both Title VII of the Civil Rights Act of 1964 and the federal Age Discrimination in Employment Act (ADEA), many of the Utah legislature's concerns can be inferred from the legislative history of those federal acts. The underlying legislative goal of Title VII and subsequent legislation (including state equivalents, such as the DADA) was to eliminate discrimination from U.S. society. However, these legislative acts have limited application. Title VII, for example, exempts employers with fewer than fifteen employees from compliance.5 Similarly, the ADEA exempts employers that have less than twenty employees.6 These limitations show that Congress considered other factors besides its desire to combat discrimination in implementing Title VII and related legislation.7 More specifically, while eliminating discrimination drove Congress's implementation of Title VIPs general framework (which includes the ADEA), at least two additional concerns influenced Congress's decision to limit the legislation's applicability. …