Category Archives: Age Discrimination

Age Discrimination Victims Gain Significant Victory Before Supreme Court

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The Supreme Court in Meacham v. Knolls Atomic Power Labs issued a pro-employee decision that will make proving age discrimination under the Age Discrimination in Employment Act (ADEA) more practical. We blogged about this case in January 2008 when the Supreme Court first granted certiorari: Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases.

In Meacham, Knolls Atomic Power Labs terminated 31 employees, all but one of whom were 40 years old or older. The employees brought suit under the ADEA and prevailed before a jury. The Second Circuit overturned the verdicts, reasoning that the burden of proof rested with the workers. In its decision, the Supreme Court vacated the Second Circuit’s ruling, finding that Congress intended the burden of persuasion to fall with the employer.

To read more about the decision, please visit the New York Times article entitled, Supreme Court Eases Age Bias Suits for Workers.

Retaliation Claims Recognized: Employees Victimized by Discrimination Gain Victory Before Supreme Court

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Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee’s right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court’s decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

Supreme Court Refuses to Review Age Discrimination Case Involving Retirees’ Health Benefits

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The Supreme Court recently rejected a legal challenge from AARP, which contended that employers that reduce health benefits for former employees who become eligible for Medicare violate age discrimination laws.

The case began approximately eight years ago in 2000 when retired county workers in Erie, Pennsylvania who had their health benefits reduced when they turned 65 claimed that such a policy violated the Age Discrimination in Employment Act (ADEA). The U.S. Court of Appeals in Philadelphia held that this policy amounted to age discrimination.

Initially, the Equal Employment Opportunity Commission (EEOC) agreed with the Appeals Court decision. In 2003, however, the EEOC determined that the ruling would incentivize employers to not offer benefits to retirees for fear of running afoul of age discrimination laws. With this concern in mind, the EEOC proposed an exception to the ADEA, allowing employers to reduce health benefits when former employees became eligible for Medicare.

In June 2008, the Appeals Court essentially reversed itself and upheld the EEOC’s new policy. For more information, please visit the Los Angeles Times article entitled, Supreme Court allows retiree benefit cuts

Age Discrimination Suit Filed Against WHDH-TV by former Reporter, Michael Macklin

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WHDH-TV (Channel 7) is in the midst of defending an age discrimination claim. In a lawsuit filed in Suffolk Superior Court, former WHDH reporter, Michael Macklin, claims the station fired him last year after he complained of age discrimination. Macklin had been with the station for 13 years.

The suit alleges that the station’s news director, Linda Miele, reduced Macklin’s shifts beginning in January 2006 while simultaneously hiring several younger reporters. Just this week, WHDH announced that it would replace long-time anchor Jonathan Hall, who is in his late 40s, with Adam Williams, who is 27 years old. Hall will join the investigative unit.

Macklin’s suit seeks reinstatement, compensation, attorney’s fees, and court costs. To read more about Macklin’s suit, please visit the Boston Globe article entitled, Macklin sues Ch. 7 for age discrimination.

The Importance of Discovery in Proving Workplace Discrimination Based on Circumstantial Evidence

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Employment discrimination claims are usually proven on circumstantial evidence as opposed to direct evidence. The latter is also known as the “smoking gun,” which very often does not exist. Below are two examples to illustrate the difference between these two types of evidence using, as I’ve been known to do, characters from the TV sitcom, The Office:

(1) Michael Scott falls under the misguided impression that the surest way to increase profits is to fire all employees above 40 years old. He promptly terminates Phyllis Lapin and provides her with a letter stating that he has enjoyed working with her and regrets having to terminate her because of her age. This is clearly direct evidence of discrimination. Dunder Mifflin is embarrassed and promptly settles out of court.

(2) Michael Scott falls under the same misguided impression. However, after discussing his scheme with Dunder Mifflin’s Human Resources guru, Toby Flenderson, Michael is flabbergasted to discover that such a termination would be illegal. Rather than discharge Phyllis, Michael enlists his trusty sidekick, Dwight Schrute, to convince Phyllis to retire. Together, Michael and Dwight engage in a series of age-based comments directed toward Phyllis. In one instance, Michael asks Phyllis about her plans to retire and tells her, “There’s not much time left.” In another instance, Dwight starts an office pool and awards the proceeds to the employee who comes closest to guessing Phyllis’ age. Unperturbed, Phyllis keeps working. Michael eventually gives in and terminates Phyllis under the auspices of poor performance. Toby is shocked and reminds Michael that he gave Phyllis an excellent performance review the month before. Michael laughs Toby off, tells him he worries too much, and assigns Phyllis’ sales accounts to the receptionist, Pam Beesly, who has no prior sales experience. There is clearly circumstantial evidence of discrimination. The case against Dunder Mifflin is not air tight, but Phyllis will likely prevail.

Cases based on circumstantial evidence follow a three-step analysis. First, the employee alleging workplace discrimination must establish what is called a prima facie case. In the second example, Phyllis satisfies this burden because: (a) she falls into a protected category being 40 years old or older, (b) she suffered an adverse employment action by way of her termination, and (c) she was replaced by Pam, who happens to be at least five years younger. Having established her prima facie case, the burden now shifts to Dunder Mifflin to supply a legitimate, non-discriminatory reason for the termination. Based on Phyllis’ superb performance, the company realizes that it cannot credibly claim that Phyllis was terminated based on performance. Accordingly, Dunder Mifflin claims that her position was eliminated through a re-organization. The burden then shifts back to Phyllis to show that the company’s alleged rationale is pretextual.

A showing of a pretext can be accomplished in many different ways. First, the age-based comments to which Phyllis was subjected certainly raises a specter of impropriety. Furthermore, the fact that Michael terminated Phyllis based on performance, despite a very recent glowing evaluation, shows inconsistency on Dunder Mifflin’s part. In addition, the changing rationale for Phyllis’ termination — from performance to re-organization — is yet another factor commonly used to show pretext. Finally, that Phyllis’ responsibilities were actually assigned to another employee, with far less experience, rings pretext.

The biggest part of any case is discovery, in which either party can request documents from the either side to prove their case or mount their defense. For example, perhaps there were e-mails between Toby and Michael in which Michael shared his ideas to increase profits by firing all employees above 40 years old. Perhaps there were also e-mails between Michael and Dwight detailing the plot to force Phyllis to resign. Such documents would be discoverable. If asked to do so, Dunder Mifflin would be forced to produce such e-mails to Phyllis and her attorney.

One might wonder: what if Dunder Mifflin claimed that such e-mails did not exist, even though they did? This is exactly what is at issue in a case against the law firm of Foley & Lardner. According to an article in Law.com entitled, Age Discrimination Suit Against Foley & Lardner Sparks Discovery Tiff, Hideko Shiroyama, who worked as a legal secretary at Foley & Lardner, is suing for age discrimination. Prior to her exit, Ms. Shiroyama took more than 800 pages documents to support her claims. Based on these documents, her attorney believes he has a road map to discover other documents in Foley & Lardner’s possession to substantiate the claim that Ms. Shiroyama’s termination was due to age discrimination. The law firm, however, refuses to produce those documents in discovery.

Discovery if the heart of any case. It will be interesting to see whether the court rules that Foley & Lardner’s decision to withhold information is lawful or whether it amounts to an abuse of process.

Job Discrimination Complaints Jump 9%

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Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Supreme Court Decides Statute of Limitations Issue in Second Age Discrimination this Term

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The Age Discrimination in Employment Act of 1967 (ADEA) prohibits workplace discrimination based on age against employees and job applicants who are 40 years of age or older.

Age discrimination cases before the Supreme Court this term abound. The Court recently issued another opinion in an age discrimination case; the second one in less than one week. In Federal Express v. Holwecki the Supreme Court decided what constitutes a “Charge of Discrimination” submitted to the Equal Employment Opportunity Commission (EEOC).

In Federal Express v. Holwecki, the plaintiff-employees filled out an intake questionnaire in which they alleged age discrimination and filed it with the EEOC. Attached to the questionnaire was an affidavit further detailing the discrimination and stating: “Please force Federal Express to end their age discrimination plan.” The plaintiff-employees, however, did not fill out the official Charge of Discrimination documentation.

A Charge must be filed with EEOC within 180 days from the date of the alleged violation. As an aside, the 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law, which is the case in Massachusetts.

After filing suit, the Federal District Court in Manhattan dismissed the suit on the basis that the statute of limitations had expired. In doing so, the district court took a hyper-technical approach, concluding that the questionnaire and affidavit were insufficient to constitute an official Charge. The Second Circuit Court of Appeals reversed the lower court’s decision, stating that the plaintiff-employees’ documentation was the equivalent of an official Charge of Discrimination. The Supreme Court agreed:

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.
For more about the Supreme Court’s ruling in Federal Express v. Holwecki, check out the New York Times article entitled, Supreme Court Alters Tone in Discrimination Case.

Supreme Court Rules on Age Discrimination Case Involving “Me Too” Evidence

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Employees who are victims of age discrimination may be able to submit a new kind of evidence at trial to prove their case. The U.S. Supreme Court issued a unanimous ruling in Sprint/United Management Co. v. Mendelsohn, which involved the issue of “me too” witnesses at trial.

Ellen Mendelsohn, who worked for Sprint for 13 years, was 51 years old at the time she was selected for a mass layoff. During trial, she sought to introduce the testimony of former employees who allegedly saw spreadsheets with the ages of employees targeted for layoffs and who allegedly heard managers make age-biased comments. Mendelsohn’s proposed witnesses had not worked for the same immediate supervisor as Mendelsohn and had not been dismissed from Sprint at the exact same time.

The Supreme Court granted Mendelsohn’s writ of certiorari on the issue of whether the federal rules of evidence allow victims of workplace discrimination to offer testimony of co-workers who may have suffered discrimination under similar circumstances, but under different supervisors.

Although the Supreme Court did not issue a definitive finding on the issue, the Court concluded that “such evidence is neither per se admissible nor per se inadmissible.” Notably, the Supreme Court stated that the 10th Circuit Court of Appeals had not fully explained her reasons for excluding Mendelsohn’s proposed witnesses. In doing so, the Court vacated the 10th Circuit’s ruling and remanded the case back to the U.S. District Court in Kansas City, Kansas.

Supreme Court To Decide Whether Age Discrimination in Employment Act (ADEA) Prohibits Retaliation Against Federal Employees

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The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from refusing to hire, discharge, or otherwise discriminate against employees who are at least 40 years of age. The goal of the ADEA is to promote the employment of older persons and to prohibit employers from engaging in arbitrary discrimination based on age.

This term, the Supreme Court will hear no less than five cases involving age discrimination. As reported by National Public Radio (NPR) in an article entitled
Age Discrimination Hits Supreme Court, the traditional notions of retirement are changing:

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year …. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Novel issues abound. In Gomez-Perez v. Potter, for instance, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. After filing an age discrimination charge against her supervisors under the ADEA, Gómez alleged that she suffered retaliation. The federal district court granted summary judgment for the Postal Service, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA.

Gómez appealed to the United States Court of Appeals for the First Circuit. The First Circuit reversed, in part, holding that the United States did waive sovereign immunity, but that Section 15 of the ADEA does not provide a cause of action for retaliation by federal employers.

As reported in an article by the Washington Post entitled Public Workers’ Shield Against Reprisal for Bias Claims Pondered, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia will likely interpret this issue differently from Justice Ruth Bader Ginsburg.

Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases

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The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute “opposition” to sexual harassment. Click here for the Sixth Circuit’s decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF’d employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer’s business necessity defense. Click here for the Second Circuit’s decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.