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.

Supreme Court Rules That Title VII Allows Third-Party Retaliation Claims

Employees who are victims of third-party retaliation clearly state a claim under Title VII of the Civil Rights Act of 1964.

In Thompson v. North American Stainless, the United States Supreme Court held that the plaintiff-employee fell within the “zone of interest” to bring a claim under Title VII. There, Eric Thompson worked at the same employer of his then-fiancée (now wife), Miriam Regalado. Unfortunately, the employer fired Mr. Thompson after Ms. Regalado filed a sex discrimination claim with the Equal Employment Opportunity Commission. Mr. Thompson then filed his own complaint with the EEOC for retaliation under Title VII.

In its opinion, District Court for the Eastern District of Kentucky granted summary judgment for the employer on the basis that Title VII does not contemplate third-party retaliation claims. In doing so, the court stated:

The Court recognizes that retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against. But, the Court also finds persuasive the reasoning that Title VII already offers broad protection in such situations by prohibiting employers from retaliating against employees who oppose unlawful employment actions or who participate in any manner in a proceeding under Title VII.

In its opinion, the Sixth Circuit (en banc) affirmed, reasoning:

Even under the most generous definition of “oppose” recognized by the Court in Crawford—”to be hostile or adverse to, as in opinion”—a plaintiff must engage in a discrete, identifiable, and purposive act of opposition to discrimination. Thus, such action is a critical component of a prima facie case of retaliation under Title VII. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

The Supreme Court reversed and, in doing so, rejected the employer’s argument that Title VII claims should be limited to the person who was the subject of unlawful retaliation:

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

The case was successfully argued by Professor Eric Schnapper of the University of Washington School of Law. Thanks to The Oyez Project, the oral argument can be heard here.

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 Victims Gain Significant Victory Before Supreme Court

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.

upreme Court Deprives Public Employees of Constitutional Rights

The Supreme Court in Engquist v. Oregon Department of Agriculture rejected a class-of-one equal protection theory in the public employment context. The case involved a public employee’s claim that she had been treated arbitrarily compared to similarly situated employees, arguing that such treatment gives rise to a class-of-one equal protection claim.

In 1992, Anup Engquist began working as an international food standard specialist for the Export Service Center, a laboratory within the Oregon Department of Agriculture. During her employment, Engquist experienced difficulty working with a colleague, Joseph Hyatt, alleging that he had made false statements about her. Engquist reported Corristan’s conduct to her boss, who required that both employees attend diversity and anger management training. In 2001, John Szczepanski assumed supervisory status over Corristan, Engquist, and Hyatt. Thereafter, Szczepanski passed up Engquist in favor of Corristan for a position for which Engquist was more qualified. Enguist’s position was later eliminated.

A jury ruled in Engquist’s favor, which the Ninth Circuit reversed. In an opinion authored by Chief Justice John G. Roberts Jr., the Supreme Court ultimately agreed with the Ninth Circuit. In doing so, Justice Roberts perceived practical problems with Engquist’s class-of-one equal protection theory:

We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governmentswill be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through themin a search for the proverbial needle in a haystack.

The dissent, led by Justice John Stevens, addressed these practical concerns:

Presumably the concern that actually motivates today’s decision is fear that governments will be forced to defendagainst a multitude of “class of one” claims unless theCourt wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently, that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental, power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus.

Overall, the Engquist decision deprives public employees of constitutional rights.

For more information, please visit the New York Times article entitled, Justices Reject ‘Class of One’ Argument.

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

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.

Equal Pay Across Genders Faces Resistance from White House

In 1996, civil rights advocates established Equal Pay Day to acknowledge the pay gap between genders in which female employees earn approximately 75% of the wages of their male counterparts. Ensuring equal pay across genders continues to be a struggle. Numerous lawsuits have been brought on behalf of women throughout the United States who, despite performing the same work as their male counterparts, are paid substantially less. In December 2007, for example, the Ninth Circuit affirmed class action certification in Dukes v. Wal-Mart, which seeks redress for approximately 1.6 million current and former female Wal-Mart employees consistently passed up for promotions and salary increases that went to lesser qualified males (See Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart).

Perhaps the most important suit to-date has been the United States Supreme Court’s May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co., which signifies a near-fatal blow to an employee’s right to seek redress for pay discrimination. Lilly Ledbetter worked at Goodyear for 19 years before realizing she was being paid much less than many of her male counterparts. Although a jury agreed that Ms. Ledbetter had been paid unfairly, the Supreme Court reversed on the basis that her claim was time-barred by Title VII’s 180 day limitations period. For a more detailed discussion about the Ledbetter case, please visit: Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

To undo the harsh effects created by the Ledbetter decision, Senator Edward Kennedy (D-Mass) proposed the Fair Pay Restoration Act, which would re-establish the long-standing rule that each discriminatory paycheck constitutes a new act of discrimination and re-starts the 180 day statute of limitations clock.

In July 2007, the U.S. House of Representatives passed the Fair Pay Restoration Act by a vote of 225 to 199. Unfortunately, the White House recently threatened to veto the bill in an effort to keep the Ledbetter decision as the status quo. This will likely be a talking point in the 2008 Presidential Race. While most Democrats support the bill, most Republicans oppose the legislation. The likely Republican nominee, Arizona Senator John McCain, opposes the Fair Pay Restoration Act:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems. This is government playing a much, much greater role in the business of a private enterprise system.

For more information on this issue please visit the Washington Post’s article entitled, White House Threatens to Veto Discrimination Bill.

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

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

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

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

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.