Posted by marykeating on November 7, 2009 under Age discrimination | 
Today’s New York Times editorial page presents a brief history of the second-class status of age discrimination claims. Although Congress is considering overturning the recent Gross case out of the Supreme Court, which erected a much higher proof standard for age discrimination claimants (see my earlier discussion of this case here http://marylandemploymentdevelopments.com/2009/07/16/age-discrimination-is-up-so-is-the-proof-requirement/), the problem with age discrimination has deeper roots. Adam Cohen points out that the skepticism over whether older workers deserved protection prevented age’s inclusion in the original Civil Rights laws in 1964. Ever since, the cases have been routinely met with judges’ labeling age-biased comments as “stray remarks.” “You are too old for this damn job” does not sound like a stray remark to me, but the defense will continue to characterize these comments thusly until Congress speaks clearly. Federal judges, ironically, are not forced to retire at any particular age.
Posted by marykeating on October 23, 2009 under Age discrimination |
Dean Inman worked for 17 years at Klockner Pentaplast of America as a senior manager. He charged Klockner with age discrimination when it fired him. The prospects of getting to trial in federal court on discrimination have been low in recent years. Since last terms’ Supreme Court decision in Gross vs. FBL Financial Services, moreover, the burden on age discrimination plaintiffs has been higher still. The Gross decision heightened the standard of proof under the Age Discrimination in Employment Act, requiring a plaintiff to show that if not for his age, he would not have been fired.
Despite this barrier, the Fourth Circuit reversed summary judgment in favor of the employer. Unfortunately, the case is not published, which limits its precedential value to others. But in terms of a pro-employee decision, it’s big news.
In Dean Inman’s case, his boss claimed that Inman had lied about supporting the company’s decision to freeze salaries, and repeatedly refusing to implement a program that the supervisor wanted. Often those kinds of allegations are enough to get an employer judgment without having to go to trial. They sound plausible enough, and Inman did not deny that he found the program a waste of time and refused to work on it.
But there was also evidence about age bias, in the form of adjectives betraying stereotypes about older workers. Assumptions about older workers’ limitations may be even more prevalent in high tech jobs than others, where the young are seen to be the leaders of the high technology revolution. His termination was supported by the supervisor’s wish for a “more energetic person” as leader of the technical department, “for the appearance of a revitalized company.” Mr.Inman was told that he did not fit the “model” or “profile” the company wished. In addition, the decisionmaker was paying close attention to a consultant who advised the company to appoint four people to a task force, and specified that they should be “young,” “energetic,” “future people.”
It is encouraging that the Fourth Circuit recognized these statements as indicators of age bias. Even though the employee has the burden of proof to show that discrimination motivated the decision, this evidence entitled him to have a trial and let the jury decide who was telling the truth
Posted by marykeating on July 16, 2009 under Age discrimination, Discrimination in employment |
According to the Washington Post, the Equal Employment Opportunity Commission held a meeting yesterday to address the phenomenon of skyrocketing age discrimination claims.
Age claims in 2008 outstripped 2007 claims by 30%. There is no reason to expect that 2009 will be much different. The biggest difference will be the enhanced difficulty of proving the claims. In the last weeks of its term, the Supreme Court issued several important decisions of interest to employment law practitioners. One of them had less newsworthy facts than the white firefighters case, but will have a far greater impact. In Gross v. FBL Services, the Supreme Court raised the level of proof needed by a discrimination claimant under the Age Discrimination in Employment Act. The Court unaccountably decided that the burden of proof for age discrimination plaintiffs should be higher than that for victims of race, sex, national origin or religious discrimination. These cases are difficult to make into headline news, but the reality is that most workplaces are free of open and hostile discrimination. Every educated person knows better than to spout racist invective. That does not mean that we are truly in a post-racial society, but rather that much of the bias has gone underground. The difficulties of proving that, “but for” the age of the worker, he or she would not have been fired can be insurmountable.
Age discrimination is an odd kind of bias, since it’s not based so much on “otherness,” as racial discrimination might be, as on assumptions that older people are slower, less technologically oriented, or simply in the way of the progression of the young. I have long thought that federal judges, especially, have trouble understanding the dynamic of age discrimination, since they are usually rewarded for their experience and seasoning. No one makes a federal judge retire, and no one (except perhaps a peer) dares to suggest that he is losing any competency. They are almost without supervisors, so they do not have the experience of having their territories restructured, their direct reports reassigned, or other sly methods of interfering with their performance. When these changes are designed to interfere with performance, or have the effect of reducing an older person’s performance ratings, age discrimination may be the motivation. But in these economic circumstances, when restructurings and reductions in force are commonplace, it is not going to be easy to prove bias.
In an earlier era, when the Supreme Court tipped the scales toward employers, Congress reacted with the Civil Rights Act of 1991. Perhaps Congress will take the reins again.
