Older Tech Workers Deal with Age Discrimination

California’s Silicon Valley, generally considered the world capital of technological innovation, is emerging from the recession quite well, with new companies and IPO’s all over the news. For many older high-tech workers, though, the recovery is leaving them behind. The New York Times recently profiled a group of engineers and other experienced high-tech workers who are out of work and finding that their age (most of them are over 40) has become a liability in their job search.

The hiring messages by major players in Silicon Valley can be troubling. According to the Times article:

Lori Goler, the head of human resources and recruiting efforts at Facebook, said her company was looking for the “college student who built a company on the side, or an iPhone app over the weekend.” The company also hires more-experienced workers, if “they are results-focused and can deliver again.”

To some older workers, this is a thinly-veiled message that older workers need not apply.

Several years ago, a former Google manager sued the company for age discrimination. Google fired Brian Reid in 2004, when he was 52 years old. During his employment, Google’s Vice President of Engineering Operations allegedly stated that Mr. Reid’s opinions were “obsolete” and “too old to matter.” Other coworkers also allegedly called Mr. Reid an “old man,” “old guy,” and an “old fuddy-duddy.”

During the litigation, Google filed a motion for summary judgment, the purpose of which is to deprive a jury of the opportunity to hear the case. As part of this motion, Google argued that the age-related comments are irrelevant and can not be relied upon by Mr. Reid to prove that he was terminated because of his age. In doing so, Google advanced what is known as the stray remarks doctrine. The case, and this issue in particular, made its way to the Supreme Court of California.

The court sided with Mr. Reid and rejected Google’s request to apply the stray remarks doctrine. To be clear, this simply gave Mr. Reid the opportunity to present his case and the age-related comments to which he was allegedly subjected to a jury. Relying on decisions from across the country, the Supreme Court of California detailed no less than five reasons to reject the stray remarks doctrine, including the following: (1) applying the doctrine would usurp the jury’s essential role in weighing the evidence; (2) excluding such remarks would run afoul of the rule that all evidence should be considered at summary judgment; and (3) merely acknowledging such remarks does not cast aside the “commonsense proposition” that a slur, in and of itself, does not prove actionable discrimination.

The federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against workers who are at least 40 years old. Beyond hiring practices, the ADEA also protects older workers who are disproportionately affected by a facially neutral employment practice relied upon to determine, for instance, which workers to lay off in a reduction-in-force. In Smith v. City of Jackson, the United States Supreme Court affirmed that the ADEA recognizes a disparate impact theory. Where disparate impact is shown, the employer may escape liability if it demonstrates that its action was based on a “reasonable factor other than age.” The Equal Employment Opportunity Commission recently issued new regulations clarifying the employer’s burden, an overview of which can be found here.

The Boston age discrimination attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of age discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Presents a Problem for Older Job Seekers, Boston Employment Lawyer Blog (December 26, 2011)

Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers, Boston Employment Lawyer Blog (November 30, 2011)

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain, Boston Employment Lawyer Blog (October 22, 2011)

Age Discrimination Presents a Problem for Older Job Seekers

Age discrimination in the workplace manifests itself not only in the form who gets fired, but also who gets hired. A study performed by AARP reviewing employment data for August 2011 found that job seekers age 55 or older spent an average of 52.4 weeks unemployed. In sharp contrast, the average length of time for younger job seekers was 37.4 weeks. The unemployment rate for applicants in the same age demographic jumped from about 3% in December 2007 to about 7% in August 2011, with rates roughly equal for men and women. By August 2011, nearly half of older job seekers met the criteria to be designated “long-term unemployed,” meaning they had been out of work for 27 weeks or more.

Not surprisingly, there appears to be a correlation between a faltering economy and age discrimination claims. According to the National Bureau of Economic Research, the most recent recession began around December 2007 and ended in about June 2009. Based on the EEOC’s Enforcement & Litigation Statistics, the number of age discrimination cases filed dramatically rose from 2007 to 2008 by 5,479 or about 29%. There was a relatively small decrease from 2008 to 2009 and a relatively small increase from 2009 to 2010. Overall, from 2007 through 2010, the EEOC saw about a 21% rise in age discrimination claims.

The federal Age Discrimination in Employment Act (ADEA) protects employees age 40 years old or older from age discrimination. The law prohibits employers with 20 or more employees from discriminating in hiring or firing, as well as pay, job duties, and other aspects of employment, because of age. The Massachusetts Fair Employment Practices provides similar protection for employees age 40 years old or older, but applies to employers with 6 or more employees.

Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers

Age discrimination continues to be a hot button issue. Fox News commentator John Stossel stirred controversy in a report on age discrimination in the workplace in which he suggests that the law should not protect older workers from termination based solely on their age. In doing so, Stossel states “we slow down as we age” and “maybe 25 year olds can do it better.”

Of course, federal law protects employees from discrimination based on age. Specifically, the Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against employees who are at least 40 years old. Such protection applies to both employees and job seekers in relation to any and all terms and conditions of employment, benefits, promotions, hiring, firing, layoffs, and job assignments.

The Equal Employment Opportunity Commission, the federal agency responsible for enforcing anti-discrimination laws, recently voted 3-2 to propose regulations defining “reasonable factors other than age” (RFOA) in the ADEA. The proposals could significantly increase protections for older employees, both in the context of layoffs and firings. Congress and the Supreme Court have held that personnel decisions that affect older workers in greater proportion than younger workers need only be “reasonable” to comply with the ADEA. This is different from the higher standard of “business necessity” used for disparate impact claims based on sex or race under Title VII. As the Supreme Court in Smith v. City of Jackson recognized:

Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.

The proposed RFOA standards define “reasonable” from the objective standpoint of a hypothetical reasonable employer, and they provide a sample list of factors employers should consider. Such factors, relating to an employer’s practices that impact older workers, include whether: (1) the practice is common to the employer’s business, (2) it directly relates to the employer’s business goals, (3) the employer adequately assessed the impact on older employees, (4) the employer considered other options, and (5) the employer attempted to mitigate any harm to older workers. Much of this proposal appeared in the Federal Register in February 2010. Clarification is still needed as to how each factor will be weighed and when to follow them. The Office of Management and Budget will review the EEOC’s proposal, and the process of reviewing, drafting, and modifying the proposal may continue for months.

The Boston age discrimination attorneys at
The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of age discrimination, please contact
The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain, Boston Employment Lawyer Blog (October 22, 2011)
Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing, Boston Employment Lawyer Blog (April 1, 2011)
Age Discrimination Mixed Motive Standard Before the Supreme Court, Boston Employment Lawyer Blog (January 1, 2009)

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain

Age discrimination claims continue to be on the rise. Texas Roadhouse, a Kentucky-based chain of more than 350 restaurants in 46 U.S. states, faces a lawsuit from the Equal Employment Opportunity Commission (EEOC) over claims of alleged widespread age discrimination in hiring for host, bartender, and server positions. The suit, filed in U.S. District Court for the District of Massachusetts, requests anti-discrimination training for managers and employees aimed at preventing further alleged age discrimination. The lawsuit also requests monetary damages for people denied employment based on discriminatory reasons.

The EEOC alleges that the restaurant chain discriminates against older job applicants. According to a press release issued by the EEOC, the number of complaints received by the agency has increased significantly since at least 2007, prompting the agency to commence an investigation at the end of 2010. That investigation led to the current lawsuit. According the lawsuit:

Defendants’ hiring officials have told older unsuccessful applicants that “there are younger people here who can grow with the company”; “you seem older to be applying for this job” and “do you think you would fit in?”; the restaurant was “a younger set environment”; “we are looking for people on the younger side… but you have a lot of experience”; “How do you feel about working with younger people?”; “we think you are a little too old to work here… we like younger people”; “we’re hiring for greeters but we need the young, hot ones who are ‘chipper’ and stuff”; “our age group is in their young 20s, college students”; “I’m basically looking for young teenagers”; and “we really go with a younger crowd and have a younger establishment.”

The lawsuit is premised on the Age Discrimination in Employment Act (ADEA), a federal statute that protects employees 40 years old or older from discrimination based on age. The ADEA prohibits favoring a younger person over a person who is at least 40 years old solely based on age in all aspects of employment. This includes hiring, firing, promotions, layoff, job duties and assignments, benefits, and other features or requirements of employment.

The ADEA further prohibits harassment based on age in the workplace for people 40 years old or older. This includes offensive comments about an employee’s age. The conduct must rise to the level of creating a “hostile work environment” for the law to apply, and can apply against a supervisor, co-worker, or even a customer or client if the employer fails to take reasonable steps to prevent the harassment. The law also prohibits policies that negatively impact employees 40 years old or older if those policies do not have some reasonable basis other than age.

The Law Office of Alan H. Crede, P.C. assists employees who have suffered unlawful discrimination in the workplace. We devote our practice to employment law and exclusively represent the rights of employees. To schedule a confidential consultation to discuss your case, contact the Firm through our website or at (617)973-6434.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing, Boston Employment Lawyer Blog (April 1, 2011)
Age Discrimination Mixed Motive Standard Before the Supreme Court, Boston Employment Lawyer Blog (January 1, 2009)
Age Discrimination in Employment Act (ADEA) Fails to Account for Emotional Distress Damages, Boston Employment Lawyer Blog (August 13, 2008)

Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing

Age discrimination is a hot topic these days. A blog post in Forbes entitled, Is There a Lawsuit Here? Five Tips for Older Job Seekers, piqued my interest. While the article was certainly informative, in my opinion, it contained certain misconceptions.

First, the article claimed that “proving you’ve been deprived of a job or laid off to sweep the path for younger and cheaper workers isn’t easy to do” and “is darn near impossible.” To be clear, age discrimination is generally no more or less difficult to prove than discrimination based on gender, race, or any other protected category. Whether or not proving age discrimination is “impossible” will truly depend on the facts in each case. There is some indication, however, that age discrimination claims are potentially less difficult to prove since many jurors will be able to relate to the plaintiff or someday imagine themselves in the plaintiff’s predicament. Consider the following statistics compiled by Jury Verdict Research:

In 2008, age discrimination victims prevailed in 67% of all trials across the country — as compared to a win rate of 53% for disability discrimination cases, 52% for race discrimination, and 60% in sex discrimination.
In 2009, age discrimination tied with sex discrimination cases with a win rate of 57% — as compared to 47% for disability discrimination and 52% for race discrimination
From 2003 through 2009, age discrimination claims filed in state court received the highest median award at about $332,000. The next highest median award was in race discrimination cases, which came in at about $289,000

As any employment law attorney (regardless of whether they represent management or employees) will tell you, the cases with the strongest evidence of discrimination generally settle before trial. Therefore, the statistics above are likely based largely on cases where the employer thought it had a good chance of winning. Overall, the statement that proving age discrimination “is darn near impossible” is (at best) too large of a generalization.

Second, the article states that “[a]n employer can ask you how old you are. They shouldn’t, but they can.” While this may be true in certain states, its not the case in Massachusetts. As the Employment Discrimination Guidelines make clear, Massachusetts employers can only inquire about a prospective employee’s age in very limited circumstances:

Generally; the only proper question is, “Are you under 18, yes or no?” Questions about age may be allowed if necessary to satisfy the provisions of a state or federal law (for example, certain public safety positions have age limits for hiring and retiring). Also, if the Commission has previously identified age as a bona fide occupational qualification for the position.

An employer that violates this regulation by asking a prospective employee his or her age, when prohibited from doing so, indicates that the candidate’s age is a factor in the hiring decision. Massachusetts courts have held that such forbidden inquiries serves as powerful evidence of discriminatory animus.

Proving Workplace Discrimination Through Circumstantial Evidence: A Review Of Thermo King

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as “smoking gun” evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, “We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot.” Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This brings us to the case of Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer’s initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company’s policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer’s failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Unequal Pay Victims Gain Protection through the Ledbetter Fair Pay Act

Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned less than her male colleagues. A jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court’s decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Age Discrimination Mixed Motive Standard Before the Supreme Court

Employment discrimination claims will continue to garner the Supreme Court’s attention in 2009. On December 5, 2008, the Supreme Court granted certiorari in Gross v. FBL Financial to decide the following issue:

Must a plaintiff present direct evidence of discrimination in order to obtain a mixed motive instruction in a non-Title VII discrimination case?

Gross asserted an age discrimination claim under the Age Discrimination in Employment Act (ADEA) and prevailed before a jury. At trial, Gross was required to prove that his age was a “motivating factor” in his employer’s decision to demote him. In doing so, Gross relied on circumstantial evidence. The 8th Circuit Court of Appeals, however, reversed on the basis that the trial court should have required Gross to use direct evidence to prove age discrimination under the ADEA.

The Supreme Court and Massachusetts courts are no strangers to mixed motive issues. In Price Waterhouse v. Hopkins, which involved gender discrimination under Title VII, the United States Supreme Court held that the burden of persuasion shifts to the employer once mixed motives have been shown. Justice O’Connor’s concurring opinion in Price Waterhouse, however, required an employee to produce “direct evidence” of discrimination where mixed motive is at issue. Congress later amended Title VII to make “motivating factor” — and not “direct evidence” — the standard required in mixed motive cases.

The Supreme Judicial Court (SJC) of Massachusetts faced a similar issue in Wynn & Wynn, P.C. v. Massachusetts Commission Against Discrimination, which involved gender discrimination claims under the Fair Employment Practices Act (M.G.L. c. 151B, s. 4). There, the SJC followed the Supreme Court’s reasoning in Price Waterhouse, holding that the burden shifts to the employer once mixed motives are shown. Once the burden shifts, the employer can avoid liability only by proving that it would have made the same decision even without the illegitimate motive.

In Wynn & Wynn, the SJC also discussed the quality of evidence needed in mixed motive cases, noting that an employee must “demonstrate with a high degree of assurance” that the challenged employment decision was a “mixture of legitimate and illegitimate motives.” The SJC ultimately applied a direct evidence standard, stating there must be “some strong (direct) evidence of discriminatory bias.” The SJC made clear that direct evidence “consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.”

Subsequent to Price Waterhouse and Wynn v. Wynn, Congress amended Title VII to make “motivating factor” — and not “direct evidence” — the standard required in mixed motive cases. The Supreme Court noted this change in deciding Desert Palace, Inc. v. Costa, where it held that “[i]n order to obtain [a mixed motive instruction under Title VII], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘[protected class] was a motivating factor for any employment practice.’”

Unlike Title VII, Congress has not detailed the quality of evidence needed under the ADEA. As Professor Paul Secunda of Marquette University Law School has commented, “this case is going to be a tough one to predict.”

Age Discrimination in Employment Act (ADEA) Fails to Account for Emotional Distress Damages

The Age Discrimination in Employment Act (ADEA) and the Fair Employment Practices Act of Massachusetts prohibit employers from discriminating against workers 40 years old or older based on age. A key, often overlooked, difference between these two statutes exists. Unlike the Fair Employment Practices Act, employers that wrongfully discriminate against employees based on age are not responsible for compensatory damages for pain and suffering. The First Circuit in Collazo v. Nicholson recently held that such recovery is not available under the ADEA. In doing so, however, the court also noted Section 626(b)’s broad language allowing federal courts to award “such legal or equitable relief as may be appropriate to effectuate the purposes of the Act.”

Courts have interpreted Section 626(b)’s broad language to include such injunctive relief as reinstatement or promotion where necessary to effectuate the ADEA’s purpose. For whatever reason, courts continue to deny those who suffer discrimination the right to recover emotional distress damages under Section 626(b). Failing to consider the upheaval and devastation that can result from an unlawful termination constitutes a cramped interpretation of the statute.

Imagine that you just turned 55 years old. You have been with your company since graduating from college. Your son or daughter just entered college. Tuition is steep, but you’ve planned for this and feel ready. Your company recently appointed a bright, young CEO. During a staff meeting, the new CEO comments that the average age of employees at your company is 55. What the CEO says next is somewhat troubling: “We need young talent with fresh ideas.” Despite your stellar performance and the company’s well-known financial success, you find yourself terminated months later under the auspices of a re-organization.

For the first time in a very long time, your future is unclear. Despite your hard work and dedication, goals that you were poised to achieve are suddenly out of reach. You break the news to your child that s/he will need to transfer to a local university where the tuition is less expensive. Months pass with no comparable job offer. You and your spouse come to the realization that the mortgage payments are just too much. Relocation becomes necessary. The resulting financial turmoil has placed a great deal of stress on your marriage. You and your spouse begin to attend marriage counseling.

Unfortunately, the fact pattern described above is not uncommon. An Business Week article entitled Would We Fire Older Workers If We Could? paints an insightful picture of the uphill battle that older workers face. The emotional trauma that can result from age discrimination and losing one’s job is not far fetched. Section 626(b) explicitly calls for equitable relief. To effectuate the purpose of the ADEA, equitable relief should be interpreted to include compensatory damages for pain and suffering.