Articles Posted in Age Discrimination

Company can’t interview only ‘inexperienced’ job applicants

A medical device company in Illinois posted an ad for a job in its law department, restricting consideration of applicants to those with no more than seven years of legal experience.

The company received an application from 59-year-old Dale Kleber, who had previously served as general counsel of a public company, head of a national trade organization, and interim CEO of a different medical device business.  The company didn’t interview Kleber and instead filled the position with a 29-year-old.

As instances of age discrimination are on the rise with the graying of the baby boomers, proving such complaints got tougher after Gross v. FBL Financial Services.
The 2009 U.S. Supreme Court decision effectively raised the standard of proof in such cases to the point that it was no longer enough for plaintiffs to show that discrimination based on age was a motivating factor in an adverse employment action, even if it was one of many. The slim majority of justices ruled that plaintiffs would have to prove that the employer would not have taken the adverse action “but for” the worker’s age.

Our Boston employment attorneys recognize that this put a halt to many age discrimination actions across the country as workers weighed whether such litigation was worth it. Even when age plays a prominent role in an employer’s decision, proving it can be another story.
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It could come in the form of being turned down for a key project. Or it could be a more blatant pass-up for a raise or promotion.
Age discrimination is often tough to identify, because it tends to be fairly subtle. However, our Boston employment lawyers understand that with the oldest baby boomers turning 68 this year, the number of claims for age discrimination is climbing.

According to a recent report by the AARP and MetLife, one out of every five workers today between the ages of 45 and 74 believe they were turned down for a job because of their age. One in 10 say they were overlooked for a promotion, laid off or denied some kind of career development opportunity because of their age.

Even many of those individuals who say they haven’t been held back significantly as a result of their age say they have experienced some kind of put-down or negative slight attributable to their age. Sometimes it’s intentional, sometimes not. It comes in the form of words like “geezer” or admonishments to “keep up.” In some cases, it’s simply a dismissive look.

In and of themselves, these might not be grounds for litigation. However, accompanied by a seemingly systematic effort to either keep that person from advancing or, worse still, force them out of a company entirely, a case can often be made.

We expect we’ll continue to see more of these kinds of cases in the coming years. Of the oldest boomers, those born in 1946, about 50 percent have fully retired, according to MetLife. However, a little more than 20 percent are still on the job full-time and another 12 percent or so are working part-time. The reasons for delaying retirement ranges from personal financial hardship to merely wanting to continue working and contributing.

Whereas the target retirement age in 2008 was 66, today it’s 71.

On one hand, that leaves stiffer competition for jobs. It could also lead to harsh feelings from those in the younger generation. There is the belief that older workers are sucking up opportunities that should be offered to younger people.

But in addition to this is the fact that baby boomers, who throughout their lives have been identified as trailblazers on many fronts, are much more aware of their rights under the law. They know that Title VI of the Civil Rights Act prohibits harassment or discrimination against someone on the basis of their age. They also recognize that so long as the action has a negative impact on workers over the age of 40, they may have grounds for litigation.

What makes it a bit tougher these days is a 2009 U.S. Supreme Court decision, Gross v. FBL Financial Services. The case set the precedent that requires age discrimination be not just one of several motivating factors in a negative action against an employee, but rather it must be the primary factor.

Just because these cases are tougher to win doesn’t mean success is impossible. If you believe you have been discriminated against due to your age, contact our experienced employment law office.
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An age-discrimination lawsuit in Massachusetts has been filed against the Texas Roadhouse restaurant chain, according to a report by Business First.

Boston employment attorneys have witnessed an increase in age discrimination lawsuits since the beginning of the economic downturn. The Equal Employment Opportunity Commission reports the number of age discrimination lawsuits has increased 50 percent in little more than a decade, from 15,785 in 1997 to 23,264 in 2010. 1308399_lamb_chops_and_asparagus.jpg

“The number of age discrimination charges filed with the EEOC has risen significantly over the years, which prompted the Commission to conduct a meeting on the subject last December” said Jacqueline A. Berrien, Chair of the EEOC. “Denying jobs to qualified applicants who are over 40 years old on account of their age is illegal, and as we heard during the Commission meeting, it can have devastating consequences for older workers and their families.”

In many cases, employers have looked to shed payroll by reducing workforce, which is legal and a perfectly legitimate business decision. But older workers have had some success in fighting back; veteran employees are often the highest paid and the first targeted.

In other cases, Baby Boomers thought they would just work a few more years to make up for paltry retirement savings. For those folks, being downsized can have a devastating impact on retirement. And, as is often the case for older workers, starting over or finding other comparable employment may be difficult or impossible.

Yet companies have a right to manage the bottom line. Consulting a business litigation law firm with extensive experience in employment law can help insulate a company from employment lawsuits alleging age discrimination or other issues.

As this case illustrates, age may even be a barrier to entering the restaurant and service industry. Texas Roadhouse is accused of age discrimination in its choice of younger workers. The lawsuit filed in U.S. District Court in Massachusetts this week alleges that, since at least 2007, the company instructed managers to hire workers outside the EEOC’s protected age group –which includes those employees over the age of 40.

The Louisville-based restaurant chain denies the allegations.

The lawsuit seeks a change in the chain’s hiring policies as well as the payment of lost wages to potential employees who were not hired because of their age. The suit alleges only 1.9 percent of front-house employees (those dealing with customers) are over the age of 40 — a figure that is “well below” a representative sampling of the population in areas around the company’s restaurants.

The EEOC called the disparities “statistically significant.” The company is accused of encouraging managers to hire young workers. All of the employees in the company’s training and employment literature feature younger workers. As the EEOC noted, the statistics don’t begin to tell the tale when it comes to age discrimination; in many cases, an older worker may never know why he or she didn’t get the job.
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A pair of Massachusetts court decisions this week highlight the issues of gender discrimination and age discrimination in Massachusetts.

Boston employment attorneys understand the complex issues surrounding gender and age discrimination. Employers may not discriminate based on race, or gender, or against those over 40, or any number of other protected classes. Still, these issues happen with startling regularity. In one of these cases, a judge known for taking a hard stand against employment violations is now being accused of discriminating against a potential hire based on her gender. These are complex cases. Failure to assert your rights at the outset can impact your ability to make a claim. In today’s job market, losing a career position — or any position for that matter — can have a long-term impact on the financial well-being of you and your family.
The Equal Employment Opportunity Commission reports 35,890 race discrimination suits were filed last year, accounting for about one-third of all employment lawsuits. A total of 29,029 sex discrimination suits were filed in 2010.

A Human Resources trade publication is reporting that a 61-year-old housekeeper did not receive pay raises or performance bonuses after her relationship with her manager began to deteriorate in 2004. The employer blamed it on a pay freeze, although other employees received raises. A meeting with a corporate vice president did not resolve the issues.

According to the lawsuit, the employee’s relationship with her manager continued to deteriorate and he made a number of age-based comments, including asking her when she was going to retire. The employee, a 22-year veteran, also took flak for hiring a 52-year-old laundry worker. The employer then made allegations of racism against her and terminated employment.

She sued for age discrimination and the company quickly moved to have the case dismissed. The court denied the company’s motion, saying the employee had met her burden of proof by showing that she was a member of a protected class, had been a high performer and had been subject to adverse employment decisions.

The court ruled her case could continue.

In a gender discrimination case, the Globe reports the state’s civil rights chief found the judge ignored the recommendations of a hiring panel and improperly passed over a female employee for promotion. The Massachusetts Commission Against Discrimination awarded the woman more than $200,000. She had been employed by the court system for more than 20 years.

The woman had applied for a job as the operations and maintenance supervisor with the Plymouth District Court. She had previously spent 14 years as a regional facilities manager at seven courthouses in the Boston area. The judge chose a man for the position who was the panel’s third choice. He maintained after the decision that he had chosen the best person for the job.

The civil rights agency said the woman was not chosen out of bias for what is traditionally a position held by men. A spokesperson said the Trial Court of Massachusetts plans to appeal.
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As a Massachusetts employment lawyer, I follow cases from around the country that may be of interest to potential clients in Massachusetts.

The California Supreme Court recently ruled in favor of a former Google executive who brought an age discrimination suit against the company, clearing the way for a trial over whether his firing was discriminatory. A trial court had originally granted Google’s summary judgment motion against Reid’s claims, but an appeals court reversed that decision.

The Supreme Court affirmed a San Jose appeals court’s earlier conclusion that Brian Reid, who was fired from his job as Google’s engineering director in 2004, was entitled to take his case to trial because he had presented enough evidence for a review of whether the company engaged in age discrimination.

Evidence in the record included alleged discriminatory comments made by decision makers and coworkers.

Reid had managed the team that built one of the first Internet search engines at AltaVista, in 2002. The company fired Reid, then 54, within two years, because he was not a “cultural fit” for the company, after co-workers and a supervisor had allegedly described him as “an old man, ” “slow, ” “sluggish” and “an old fuddy-duddy.”

Reid responded with an age discrimination lawsuit in 2004. In court papers, Reid alleged Google’s poor treatment of older workers started at the top with co-founders Larry Page and Sergey Brin and filtered through management. He maintained he is owed tens of millions of dollars lost in stock options from his firing.

A Google spokesman said today that Reid’s termination was not discriminatory and that Google is ready to defend its actions in a trial.

While it is not necessarily an indication of discrimination, federal data shows that Silicon Valley computer workers tend to be much younger than the valley’s general workforce, at least during the past decade.

While 21 percent of the workers at Santa Clara County companies were over 50, just 9 percent of computer workers were over 50. That data covers a range of computer related occupations, including software engineers, database administrators, programmers, computer scientists and computer and information systems managers. Data from the 2010 Census is not yet available.

Discriminatory comments and employment statistics can be powerful evidence in discrimination cases, whether the case is brought in California or Massachusetts.
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