Jury Awards $900 Thousand In Age Discrimination Case

I just finished trying an age discrimination case and the good news is that we won. Here's an article published yesterday about the case: 

Jury awards Cleveland woman $900K in age discrimination employment case
 CLEVELAND, OH - A Cleveland jury in the Cuyahoga County Court of Common Wednesday returned a $900,000 verdict in a significant employment discrimination lawsuit brought by a former employee of Cleveland's University Hospitals Case Medical Center. The lawsuit filed by Gloria Parks against University Hospitals alleged that Parks, a medical assistant, was discriminated against because of her age when she was terminated from her job of 30 years in July of 2008.

After a seven-day trial in the courtroom of Judge Carolyn Friedland, the jury found that age was a determining factor in University Hospitals' decision to terminate Ms. Parks' employment. Parks was awarded $450,000 for her economic loss and $450,000 for other compensatory damages.

"We are thrilled that Gloria Parks received the justice that she deserved from the jury", said renowned civil rights lawyer Ellen S. Simon, of counsel with McCarthy, Lebit, Crystal & Liffman, and lead attorney on this case. "Nothing could be better than to see Ms. Parks have the opportunity to be vindicated. What happened to Gloria was tragic and shouldn't happen to anyone."

Parks' lawsuit charged that her termination stemmed from a patient identification incident in July of 2008, involving Parks and a younger co-worker in the pre-admission testing department where they both worked. The mix-up occurred when two patients with the identical name appeared at the department on the same morning to get their blood drawn. UH claimed that Parks failed to follow the proper patient identification policy, but witnesses testified that the policy was not enforced in the department and not properly followed by the employee who checked the patient in that day, pulled the wrong medical chart, and passed it off to Parks. The mistake was discovered and corrected before the patient left the department and the blood work was for both patients was properly processed without any error. Neither patient was harmed. After Parks was fired, the department changed its procedures in the department to require proof of identification at the time of check in with a driver's license.

Parks claimed that Steve Diltz, who became her supervisor five months prior to the incident, had singled her out and treated her differently than her younger coworkers since his assignment to her department. Evidence presented at trial showed that Diltz seized on the identification incident as a means to ensure that Parks was fired, and that his decision to unjustly fire her was supported without question by University Hospitals human resources department as well as Diltz's manager without any independent investigation. The incident resulted in a patient complaint, but the testimony of the patient revealed that it was a third employee involved with the patient -- the department nurse -- not Parks, who had upset the patient on the day in question. The nurse was never disciplined.

Parks' age discrimination claim was supported by the fact that she and the younger co-worker were involved in an identical incident and Parks was fired while the younger co-worker received no discipline whatsoever. The evidence also showed that younger employees made comparable or more serious mistakes with some frequency in the department and received no formal corrective action or discipline, and that no other long term employee had been discharged for a single mistake at UH involving a patient which caused no harm .

Parks, who was 54 at the time of her discharge, and known throughout the hospital as one of the best phlebotomists at UH, had a "Do Not Re-Hire" permanently placed in her personnel file. A day after her termination, Parks was replaced by Diltz with a much younger worker. As a consequence of the firing and the "Do Not Re-Hire" classification, Gloria Parks has since been unable to find permanent employment at any hospitals, and lost her home, as well as her ability to make a living in her field. "I am very pleased with the verdict", said Parks, following the jury's decision. "It's been so hard - I loved my job. I just couldn't believe this was happening to me. Now, I have a chance to make a new start. I am so thankful for my legal team, and my family and friends who stood by me at this difficult time. I thank God for all their support."
 

For more about the case, read theCleveland Plain Dealer Article, here. Needless to say, we're thrilled. More to come about the case when I get a chance to recuperate.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia,  in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann's tea party / "Constitutional Conservative Caucus" later this month. For more about questions raised regarding Justice Scalia's impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities -- including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here's a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk" and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was "grossly excessive" under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee. 

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court's statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs -- a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don't often see decisions affirming a punitive damage award, these cases are worth noting.

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It's A Long Road To Justice

Federal Employee Wins Appeal On Sex And Age Discrimination Claim

Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.

This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.  

What Happened In The Case

Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer.   At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:

  • a record of military service
  • a bachelor’s degree in history
  • completed graduate course work in business administration, accounting and law

Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion. 

Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:

  • a bachelor’s and doctoral degrees
  • authorship of a length book and numerous scholarly publications
  • a 27 year tenure at DCMA

In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.

Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.

Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.

The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.

The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.

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Tenth Circuit Decides Important Age Discrimination Case

A Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

 Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

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Employee Rights Short Takes: Age Discrimination Cases In The News

Here are two Short Takes about some interesting age discrimination cases that made the news this month:

Forced Retirement At Age 70 Is Illegal

Nini v. Mercer County Community College: Rose Nini was a Dean at Mercer Community College from 1982 until 2005 when her contract expired and was not renewed. She was 73 years old at the time.

According to Nini, the college President, Dr. Robert Rose:

  • complimented her on her performance but “made it very clear to [her] that he thought [she] had no right to be working at [her] age”
  • said that employees of her age were considering retirement and suggested she should consider taking early retirement too
  •  told her that people who have been in a job for twenty-five years "lose their effectiveness." 
  • told her that it was her last chance to get an early retirement and leave with dignity.
  • held meetings with department heads in which he made jokes about getting rid of older employees
  • held meetings where several people discussed “age and incompetence and being dead wood”

Nini also stated that she heard from another employee that College Human Relations Director Vanessa Wilson said the College had to "get rid of old-timers and bring in new blood."

The lower court granted judgment in favor of the college holding that the college did not violate the New Jersey Law Against Discrimination because the statute allows an employer to refuse to renew an employment contract of an employee over seventy years of age. The Court of Appeals reversed and the the New Jersey Supreme Court affirmed in an opinion issued on June 1st holding that refusing to renew contracts for employees over the age of 70 because of their age violates the New Jersey’s age discrimination laws.

In other words, the failure to renew a contract because of age is equivalent to a termination -- not a failure to hire --according to the New Jersey Supreme Court. This case is good news for the many employees who are employed with contracts that are renewed year to year, or at the end of a certain term, particularly in states with statutory exceptions in discrimination laws similar to New Jersey’s.

Employees Replaced By Younger Individuals Can Prove Age Discrimination In Workforce Reduction Case

Equal Employment Opportunity Commission v. Tin, Inc.:  The EEOC announced last week that Tin, Inc., a manufacturing plant in Glendale, Arizona will pay $250,000 to settle a discrimination case filed by three employees who claimed they were fired because of their age in violation of the Age Discrimination in Employment Act.(ADEA).

The settlement follows a Ninth Circuit Court of Appeals decision in October that reversed summary judgment in favor of Tin and sent the case back to the district Court for trial.

According to the opinion, one of the plaintiffs, Neal, was replaced by an individual 15 years younger as plant manager. The EEOC provided evidence that Neal never received a negative performance review and in fact was told by his supervisors that they were satisfied with his performance.

The company contended that Neal’s younger replacement was better qualified because a facility he had run was profitable.

Interestingly, the Court stated that “the fact that a facility was profitable under one manager and not another does not mean that the two managers qualifications differed.” In addition, according to the Court, there was little evidence of the replacement's success at the plants in question. Therefore, the Ninth Circuit held, the district court erred in granting summary judgment against Neal since material facts were in dispute.

The other two plaintiffs, McGraw and Vanecko, positions were terminated because their positions were eliminated according to Tin.  In order to establish an inference of discrimination in this type of case, the Court stated,  the plaintiff is entitled to show “that the employer had a continuing need for the employee’s skills and services in that his various duties were still being performed.”

The evidence showed that McGraw’s logistics manager duties were redistributed to the production manger and sales manager who were 20 and 23 years younger. It also showed that  Vanecko’ s plant controller duties were given to someone 24 years younger.

In addition, the EEOC presented evidence that the two supervisors with decision making authority over all three plaintiffs made comments from which a jury could find “that they harbored animus towards older workers.” Therefore, the Court concluded that the EEOC provided sufficient evidence from which a jury could find that age was the “but –for” cause of the terminations.

The opinion helps explain the kind of evidence that is useful in proving age discrimination in the often difficult cases of job elimination and workforce reduction.

Age Discrimination Gets Attention Of Congress

Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer's adverse decision instead of  "a motivating factor." I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  -- even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

  • standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
  • the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework
  • employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases --- and our clients --- to have these evidentiary matters settled once and for all.

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Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial

Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of  Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital ("Hospital') as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion. 

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say, "she's too old to be working here anyway" in reference to Mora.

In the course of  Mora's lawsuit filed under the Age Discrimination in Employment Act, ("ADEA") Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

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JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations. 

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste. 

Gorzynski complained  to Celeste on numerous occasions about the discrimination and harassment she experienced and about  the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses
The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

  • permeated with discriminatory intimidation, ridicule, and insult that is
  • sufficiently severe or pervasive to alter the conditions of the victim’s employment and
  • create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

  • grabbed Gorzynsi and other women around the waist
  • tickled them
  • stared at them as if” he was mentally undressing them”
  • made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

  • it exercised reasonable care to prevent and promptly correct any harassing behavior and
  • the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook)  which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

  • only complained to her supervisor -- the harasser
  • did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski's sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed.  It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.


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Employee Rights Short Takes: Age Discrimination, Constructive Discharge and More

Here's a few Short Takes worth sharing:

Supervisor Liability

 Payne v. U.S. Airways, Inc. (Reprinted from Westlaw with permission of Thomson Reuters) :The Court held, in a matter of first impression, that a former employee's supervisor was an agent of the employer and individually liable for sexual harassment under the Vermont Fair Employment Practices Act. While the opinion only pertains to Vermont, the language may be helpful in states with similar statutes.

Constructive Discharge

Klein v. Raytheon Co(Reprinted from Westlaw with permission of Thomson Reuters): A California federal judge allowed a constructive discharge lawsuit to proceed based on a physics engineer's claim that his supervisor told him his mental disability was a "load of crap". His supervisors also called him a "liar," "thief" and "fraud", threatened to strip him of his security clearance, and told him that he would never be able to work in the aerospace industry again.

The Court rejected Raytheon's motion to dismiss the suit on the grounds that harsh or threatening language used in a single instance is insufficient to support a constructive discharge claim under the California Fair Employment and Housing Act. There aren't many cases that address the "single instance/incident" argument, so this one helps.

 

Age Discrimination

Law Firm Sued By EEOC For Age Discrimination: The EEOC filed a suit against the  New York law firm of Kelley Drye & Warren claiming that it significantly underpays attorneys who practice law past age 70 compared to similarly productive younger attorneys in violation of the Age Discrimination in Employment Act. Here's the complaint. It's not the first time law firms have been in trouble for age discrimination. The EEOC got a whopping $27.5 million dollar consent decree in a similar case against the Sidly Austin law firm in 2007.

Sexual Harassment

King v. McMillan: The Fourth Circuit affirmed a jury award to the plaintiff of $50,000 in compensatory damages on her Title VII sexual harassment claim, $175,000 on her sexual assault/battery claim (remitted to $50,000) and $100,000 in punitive damages. It's a very helpful case to read regarding evidentiary questions and jury instructions for those involved in cases of both sexual harassment and battery. It's also helpful on the issue of punitive damages.

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Congress Introduces Age Discrimination Bill To Fix Supreme Court's Gross Decision

Age Discrimination Legislation Will Overturn Gross Decision

Last June, the Supreme Court issued the awful and controversial age discrimination opinion in the Gross v. FBL Financial Services case.

I wrote about the case at that time and predicted that it was just a matter of time until Congress fixed it with a bill that would overrule the decision and set the record straight on the fair standard of proof for age discrimination plaintiffs.

Last Tuesday, the Senate and House introduced legislation designed to do just that.

The bill -- introduced as H.R. 3721 -- and called the Protecting Older Workers Against Discrimation Act, will put age discrimination plaintiffs back where they were before the Gross decision.

The bill will apply to all cases pending on or after June 17, 2009,  the day before the Gross decision.

Senator Patrick Leahy, one of the authors of the bill had this to say (as reported in the New York Times):

What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored.

In Gross, the Court held that the Plaintiff, Jack Gross, was required to prove that age was the “but for” reason he was demoted from his job.

In other words, the plaintiff would have to prove that “but for" his age, he would not have been demoted (fired, hired, etc.).

Most interpret this as a new and more stringent requirement that age be the sole reason for the adverse employment action (though the case has conflicting language on that issue).

What's fundamentally flawed about the Court's interpretation of the federal age discrimination statute (ADEA) is that it's not consistent with all  of the other comparable civil rights statutes.

Simply stated, it makes no sense for an age discrimination plaintiff to be treated differently, and more harshly, than a plaintiff in a race or gender discrimination case. The method of proof and standard of proof has been, and ought to be, the same.

In other discrimination cases a plaintiff must prove that the alleged discrimination was "a motivating factor," not the  sole reason, for the challenged adverse employment decision.

This bill establishes that age discrimination cases are to be interpreted by the same "motivating factor" standard of proof.

The bill also explicitly recognizes the difficulty of proving discrimination cases and makes clear that victims of any kind of prohibited discrimination can prove their cases with direct or circumstantial evidence.

According to Senator Tom Harkin, one of the co-sponsors of the bill -- as reported in Workforce Management:

The Court invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination

This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.

It’s no secret that workers over 55 have been hit hard by the recession. According to the EEOC, 25,000 age discrimination cases were filed last year, a 30%increase from 2000.

The last thing these folks need is a more difficult standard of proof when age discrimination is at play.

Fortunately, Congress has the final say on what its legislation means and how it should be interpreted. That’s why it gets to say that all discrimination plaintiffs should be treated consistently by the courts.

Let’s hope that this important Congressional fix gets passed soon.
 

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Eighth Circuit Sets Record Straight On Age Discrimination

Age Discrimination Plaintiff Gets Great Decision From Court of Appeals

It looks like a typical age discrimination scenario. A supervisor makes hostile remarks about older employees and expresses a preference for younger ones. An older employee with an excellent record gets fired for trumped-up reasons and a younger employee is hired to replace her.

What seems like an obvious case of age discrimination was not so obvious to the Federal District Court in the Western District of Missouri when it threw out the case of Baker v. Silver Oak Senior Living Mgt. Co. on summary judgment.

Fortunately, the Eighth District Court of Appeals reversed this month in an important opinion about the proper interpretation of evidence in an age discrimination case. 

What Happened In The Case

Kathy Baker worked as the director of assisted living at a center operated by Silver Oak since 2003. Her 2004 review was excellent in every category.

A few months later, Carolyn Thomas was hired as Baker’s new supervisor. After taking over, Thomas told Baker that:

  • Silver Oak needed people that were "young and vivacious, not slow and old"
  • Baker "needed to get rid of the dead wood"
  • Employees who had been fired were "slow and old"

She also told Baker that:

  • She dressed like an old lady
  • Everyone had to "keep up with" two supervisors who were in their thirties

The CEO, Eric Lindsey, made similar remarks at meetings attended by Baker.

Thomas also admitted that she teased Baker about walking slowly and having poor hearing. She also repeatedly asked Baker to fire and discipline older employees.

When Baker told Thomas that  "you can’t get rid of employees just because they’re old," Thomas responded that:

  • "firing older employees would allow Silver Oak to hire younger employees for less money'"
  • "younger employees would be better workers, have more energy, be more enthusiastic, and stimulate the residents"

After refusing Thomas’ demands to get rid of the older employees, Baker was disciplined and placed on indefinite probation.

The reason given was that Baker allegedly failed to get proper approval before admitting a special-needs resident and dismissed an employee without having an administrator present.

Baker claimed that that these allegations were false.

Following those events, Thomas gave Baker a negative performance evaluation and asked Baker whether she was going to quit. She said no.

A couple of months later, Baker went on an approved medical leave. She was called in at some point during her leave, told that she had been temporarily replaced and that she was being transferred to another city.

She was again asked if she wanted to quit and again she said no.

Shortly after that she was fired . The reason given was that she did not call in each day during her medical leave. Baker was 53 years old at the time.

Angela Thomas, age 30, temporarily took over Baker’s duties until a new director -- 22 year old Starr McGinnes --  was hired to replace Baker a couple of months later.

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EEOC Goes After AT&T On Class Action Age Discrimination Case

Age Discrimination Claimed For Failure to Rehire Former Employees

The Equal Employment Opportunity Commission (EEOC) had hearings last month on recent and alarming developments in age discrimination including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions.

In keeping with its commitment to aggressively enforce the Age Discrimination in Employment Act (ADEA) the Commission announced on Thursday that it filed an age discrimination lawsuit against AT&T and a number of its subsidiaries.

A successful outcome, which is no doubt years away, would be a huge victory for older workers.

About The Case

AT&T, like many companies, offered various retirement incentive programs over the last few years, in order to reduce its workforce. In those types of programs, employees who meet the qualifications (usually a combination of age and years of service) are offered enhanced severance packages if they voluntarily leave the company.

Some of those employees later applied for openings at the company, but were not hired because they had previously participated in the program.

Since October of 2006, AT&T has maintained a policy which prohibited hiring employees who retired under these plans.

The suit maintains the AT&T’s no-hire policies have a disparate impact on employees and applicants for employment who are age 40 and over in violation of the ADEA.

The suit further maintains that AT&T has no legitimate reason or purpose for this policy.

Disparate Impact Lawsuits

Generally speaking, there are two types of employment discrimination cases involving protected classes (age, race, gender, national origin, religion, disability, veteran status) of individuals.

1. Disparate treatment cases:

  • involve proof that an individual was treated differently/discriminated against because of his/her protected characteristic
  • requires proof (with either direct or circumstantial evidence) of intentional discrimination

2. Disparate impact cases :

  • involve the company’s use of a neutral policy which adversely/more harshly affects a protected group
  • proof of intentional discrimination is not required
  • the plaintiff need only prove that the policy, while neutral on it’s face, has a disparate impact on a protected group when applied to current or prospective employees
  • employer must prove a legitimate business reason (a reasonable factor other than age) for the discriminatory policy

Disparate impact litigation was widely used in the 1970’s to combat race discrimination, particularly in the South. It has also been used to challenge various policies and practices which have adversely affected women in the workplace.

It wasn’t until fairly recently that the Supreme Court recognized the use of a disparate impact analysis as a way to prove age discrimination.

Therefore, there are very few cases on this topic, and none that I know of which has challenged a company’s policy of not hiring former  employees who accepted severance packages, voluntarily retired, and then later applied for open positions.

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New Supreme Court Age Discrimination Decision Will Be Gone In A Flash

Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it's hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don't want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that's so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It's a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

  1. It decided an entirely different issue than the question accepted for review -- one that was not properly presented or briefed.
  2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here's an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can't be discriminated against  in his/her employment "because of " his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act ("ADEA") was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  "because of " age.

The Supreme Court has interpreted the "because of" language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a "but for" standard which meant that the plaintiff in a Title VII case would have to prove that "but for" his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the "but for" standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a "motivating factor in the employment decision" in order to prove that he or she was discriminated against because of it.

Congress ratified the "motivating factor" interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

What happened in the Gross case last week is that the majority resurrected the"but for" standard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the "but-for"cause of the employer's adverse decision.

It's important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it's not been done before.

 Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here's a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It's failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress' intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.

The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the "but for" language -- not the least of which is that it's a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What's Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times  on Friday:

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Are Fox and American Idol Guilty of Age Discrimination?

 It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain's Got Talent. The New York Times and CBS News  have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the "not so young and not so beautiful" that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page -- a statement that elicits great hilarity and hyperactive camera close-ups of the judges' bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, "I Dreamed a Dream" from Les Miserables.

"How old are you, Susan?" asks Simon, in a tone more appropriate to an interview with a toddler.

"Forty-seven," she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can't remember the word "villages," and to top it off, Omigod, she's old! Either she's a ringer and we're in for some weird parody of Dame Edna or we're about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she's sung three glorious, crystal clear notes, the audience is cheering, the judges' jaws have dropped, and I'm choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here's what struck me when I first saw the story:  How come she gets to try out  and she's 47? Not so in the U.S.A.

While most people may not have given it much thought, it's pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it's no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol -- not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can't try out

Why not?  I said. 

Because he's not under 30.

Yes, that's right.  In order  to try out for American Idol  you have to be under thirty years of age.  I checked the rules and here's what I found:


You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It's not a real simple answer.

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Supreme Court Hears "Mixed-Motive" Age Discrimination Case

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services  case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it's almost impossible.

For one, in my opinion, the outcome will not affect most employees who are trying to bring age discrimination cases. Two, even most lawyers who do this work don't get bogged down in the subject of the argument because it's just too complicated, and not particularly beneficial, but let me try to explain it.

Jack Gross sued  his employer under the Age Discrimination in Employment Act ("ADEA") alleging that he was demoted because of his age. The Defendant employer, FBL Financial Services:

  • denied that it took Gross' age into consideration                        
  • said even if it did, it had a legitimate reason for doing so, and
  • it would have made the same decision anyway.

The questions presented are:

  1. In a "mixed-motive" age discrimination case -- where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
  2. What kind of evidence needs to be presented -- direct or circumstantial -- to prove a "mixed-motive" case?
  3. Does the discriminatory reason need to be a "substantial reason" or "a motivating reason" for the employee to prevail?
  4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. ("CRA"); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

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Why EEOC Claims Are On The Rise

There have been a number of good articles this week which reported the Equal Employment Opportunity Commission's news that discrimination charges are on the rise. including the Workplace Prof Blog  the Connecticut Employment Law Blog,and The Wall Street Journal. There's also some debate as what these new statistics mean.

These are the statistics:

  • Overall discrimination charges are at a record high up 15%
  • Age discrimination charges are at a record high up 29%                               
  • Sex discrimination charges are up 14%                                                
  • Religious discrimination charges are up 14%
  • National Origin discrimination charges are up 13%
  • Race discrimination charges are up 11%
  • Disability discrimination charges are up 10%

I think it's pretty obvious that discrimination is going to occur in a time of economic distress.  When managers are given the opportunity to let people go, it is an opportunity to discriminate for:

  • younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
  • men who think women should be at home instead of work
  • whites who don't like blacks and other minorities

I wrote about this topic last  week in an article about the hidden dangers of workforce reductions.  My opinion comes from thirty years of representing employees in discrimination claims and both proving and winning those cases.

Not surprisingly, those who represent managers have a different perspective. I just read an article on Job-Bias Claims Soaring  to Record Highs in 2008 which quoted a management lawyer with one of the top firms in the country.  His opinion was that there really is very little discrimination and that people are just looking for money:

Someone who has lost his job is in a very tough situation and may be looking for a number of avenues where he can replace revenue, said Gerald Hathaway, and employment lawyer with Littler Mendelson in New York.  But true victims of discrimination are rare.  Most commonly, someone files a claim thinking he's a victim of discrimination, but is not.

I had lunch a couple of weeks ago with a very well regarded insurance executive who handles discrimination claims nationwide and she sincerely expressed a similar view.

Obviously, there is a real difference of opinion.

Those of us who represent employees and have done so over time have seen the patterns of a spike in discrimination claims when downsizing takes place.  We have scrutinized the documentation, explanations, and business justifications for the decisions that have been made.  Often times the objective support for the termination decision simply does not exist.  In other cases we find that the particular manager has a history of racist, ageist, or sexist remarks, or that other minorities, women, or older workers were selected in disproportionate numbers by the same manager or management group.

Certainly there are some employees who believe that they were discriminated against when they were not.  Many do not understand what the term means or how discrimination is proven.   Many believe that they were treated unfairly, and perhaps they were, but an unfair decision is not necessarily a discriminatory one.  There is no doubt that some of the charges filed with the EEOC have no merit.

On the other hand, there is real discrimination that takes place in the workplace.  If these prejudices did not exist, there would be no need for civil rights laws to protect these groups.  These claims do rise in times of economic distress when people are being singled out for termination or layoff.The news from the EEOC this week is no surprise.

Certainly everyone is entitled to their opinion. But it seems to me the belief that little discrimination occurs, or that most of the claims have no merit, or that people are just looking for money  is a belief that may not fully appreciate the real prejudice which still exists and is patently manifested in  times of economic distress.  

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One More Reason Why We Need the Employee Free Choice Act

There a host of good reasons why the Employee Free Choice Act should pass. They are very well articulated in the AFL-CIO website and AFL-CIO Blog. There’s also a wealth of information on TheHuffington Post.

According to those reports:                                                                                    

  1. 60 million people say that they would join unions if they could
  2. An employee who helps to organize a union has 1 in 5 chance of being fired
  3. Three quarters of the public -- nearly 73% -- are in favor of giving employees a fair chance to organize without employer obstruction and interference

There’s also a good reason for the passage of the Act I would like to share as an individual who has been representing employees for over twenty-five years. It may be obvious, but it's not often articulated.

Time and time again I have seen cases where employees were either prevented from or strongly discouraged from organizing a union.  In some of those instances, employees were given handbooks which looked similar in many ways to union contracts as a substitute or an appeasement.

The handbooks contained provisions, employees were told, which would give them similar benefits and protections to what they would have if they formed a union. The handbooks contained provisions for progressive discipline, layoffs by seniority, bumping rights and more.  The employees believed that they were protected and secure.

But when the time for layoffs came, seniority provisions were routinely not followed. Older employees were let go with 25, 30, and 40 years of experience. Women and minorities were fired in disproportionate numbers.

When we sued and attempted to get the provisions of the handbooks enforced we were told: “That’s just a handbook. Those are just 'guidelines’. It’s not a contract so we, the employer are not bound by it and can make choices as we see fit."  Most judges went along with the corporations.  The employees had no protection.

The result in tough economic times is that many employees in their 50’s and 60’s  are let go while the younger, less experienced employees stay on. The older employees lose the only jobs they had ever had with little chance of finding any work and no chance of finding comparable work – too young for social security, not old enough for retirement benefits, no health benefits without income to pay for it – not a good situation for our country.

And it's not safe.  Sometimes the older experienced workers -- those who know what they're doing -- are let go while the young and inexperienced workers are either retained or hired in to replace them. In many plants, it's a dangerous situation both for the workers and the community in which they live. I know of a case pending right now involving a chemical plant which frighteningly presents that precise scenario.

So unions are important for many reasons. But for someone who has represented countless individuals in age discrimination cases, they are particularly important in times of workforce reductions so that rules of fairness and safety instead of subjective attitudes of discrimination serve to control the harsh decisions that must be made.

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