Tag: age discrimination

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Coronavirus Update: The coming wave of Covid-related age discrimination lawsuits

employment law

The EEOC has sued Ohio State University for age discrimination, alleging that the school discriminated against a 53-year-old human resources generalist because of his age by assigning a substantial substantial portion of his duties to a short-tenured co-worker 25 years his junior.

“If a termination is age-discriminatory, dis­guising it behind a supposed reduction in force will not change that,” says EEOC Regional Attorney Debra Lawrence in discussing the filing of the lawsuit.

What does this lawsuit, which challenges a termination that occurred all the way back in March 2018, have to do with the COVID-19 pandemic?

According to this article in the ABA Journal, it is reasonable to expect a flood of age discrimination lawsuits from COVID-19 and the economic downturn it has caused.

“My clients are being told they’re laid off because of COVID and are asking why the kid they trained for two years still has a job,” says Stephen Console of Console Mattiacci Law in Philadelphia, who’s filed about 30 age and disability discrimination cases with administrative agencies since the pandemic started. “The question is what criteria they’re using to say who stays and who goes.”

Employers need to be vigilant in laying off older workers. “High risk for Covid” and “highly compensated” might by proxies for age discrimination. Moreover, if your RIF includes most or all of your older workers and retains most or all of your younger workers, it’s going to look like you are using COVID-19 to mask a discriminatory intent. Simply, you cannot use a COVID-19 reduction in force to purge your workplace of older workers. The EEOC and the plaintiff’s bar are watching.
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You Can’t Prove Age Discrimination if You’re Replaced By Someone Older

Crescent Metal Products in Ohio fired Donald Tschappatt for a variety of instances of poor work performance.

He made “negative comments” about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

After the company fired the 55-year-old Tschappatt, he sued for age discrimination.

The problem with Tschappatt’s claim? Crescent Metal Products replaced him with someone 6 years older. That’s not a great fact for an employee claiming age discrimination.

As the court explained:

Tschappatt fails … to show that he was replaced by someone younger. All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61.… Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappatt’s position, and Hunter has been “able to successfully reach the same production goals” and “perform all of the duties” of the position “without incident.”

The law protects older workers from discrimination favoring younger workers. An employee cannot establish this if replaced by someone older. Case closed.

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A Workplace Nip and Tuck

I recently received a story pitch with the subject line, “Do Baby Boomers Need to Go Under the Knife to Keep Their Edge at Work?”

Sure, roll your eyes. Scoff at a pitch with a pandering subject line that cries “Open me!” like a pricey bottle of booze at a five-dollar white elephant holiday gift exchange. Crinkle your nose and sniff a haughty sniff at the thought of someone actually undergoing plastic surgery to keep an edge at work.

I don’t think it’s a silly question at all.

But you do. Then again you look like an Olympian thanks to that Lagree ultimate strength workout in the corporate fitness center. If Adonis was your co-worker he’d stare slack-jawed at your chiseled body as you passed by in the company cafeteria with your meatless burger, bowl of elderberries and glass of oat milk.

Perfect hair, stylish glasses (not that you need them; it’s just accessorizing to make you look smarter), glowing skin (of course you use product, doesn’t everybody?), and the shoes. Yes, it’s all about the shoes.

You’re at the top of your game. You crush it daily.

Until, well … until you’re getting ready for work one early spring morning and the bubbly yet acerbic TV personality on your go-to morning news program blurts out that your company has been acquired. The deal is just a passing mention following the always informative “Mr. Fix-It” segment but the chill racing down your spine buries a big fat pit in your stomach. Your knees buckle and your cup of freshly brewed raspberry chai tea trembles like a swimming pool in an earthquake.

Your company was acquired by an out-of-state competitor. You’re stunned. And you’re angered because you didn’t hear about the multimillion-dollar acquisition from the CEO via a hastily called all-hands teleconference call, or a posting through the corporate intranet. Not even a terse, one-paragraph companywide email announcing the deal. No, it was a giggly morning news show delivering a body blow that radically alters your perfectly coiffed life.

It’s been your corporate casa for nearly three decades, which makes sense given that its inviting, folksy motto is “It’s our business to make you feel at home!” Sure you’d bounced from job to job early in your career searching for the right fit. I mean, who hasn’t? And after three decades on the job it’s OK to admit that you’ve toyed with the thought of retiring — not immediately mind you. There’s still a lot left in the tank.

Your “home,” however, has other ideas that don’t take into account your distant fantasy of spending part of your golden years mountain biking across the Peruvian Andes. The mentoring of junior executives whom you suspected were already at your pay level despite being half your age has come to mean nothing. The weekends spent hitting near-impossible deadlines, all the sweat equity dripping from that slightly wrinkled brow onto your place of employment — wow, reality sure bites sometimes.

Within a month it’s clear your job is in peril. A week after regulators were pleased and stockholders were paid out you also are out … out of a job. Because you know, as the new CEO proudly boasted on your go-to morning news show, “After any acquisition, there is a duplication of efforts, which results in some synergies, and unfortunately for a lot of people today, we’re realizing those synergies. These synergies will ultimately provide a better experience for the consumer.”

Well naturally. I mean, synergies. 

So now you are just another older worker in the job market. Self-doubt creeps in as you realize after your third rejection notice that ageism is a cold, cynical, perpetual workplace cycle that many employers flaunt in their never-ending search for younger, cheaper labor.

Where once you dismissed studies that found more than half of full-time workers in their early 50s were at some point forced out of their job and then experienced long-term unemployment or a huge cut in pay for years after, you now see that you are its living embodiment.

Two months ago you were a highly respected senior VP of product development. Now you’re unemployed, trips to the gym are infrequent and toast with butter and jam has replaced elderberries.

Those kids you mentored, the ones you took under your wing, not to mention out for happy hour? They are the ones interviewing you now. They all look so young and vibrant. You’ll do most anything to get back in the game, because you still have a lot to offer!

And, well, a nip here or a shot of botox there is justified to level the playing field. Going under the knife? Given your life’s new realities it’s not so silly after all.

I mean, synergies, right?

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New Study Says Age Discrimination Remains a Persistent Issue for Employers

Jon Hyman The Practical Employer

Insurance company Hiscox just released its 2019 Ageism in the Workplace Study [pdf], which revealed some sobering statistics about the growing problem of age discrimination for American employers.

  • The number of age-related discrimination charges filed with employers and the EEOC by workers aged 65-plus doubled from 1990 to 2017.
  • 44 percent of employees report that they or someone they know experienced age discrimination in the workplace.
  • 21 percent report they faced age discrimination themselves.
  • 36 percent feel their age has prevented them from getting a job since turning 40.
  • 26 percent feel there is some risk they could lose their current job because of age.
  • Only 40 percent who experienced age discrimination filed a charge or complaint.
  • Employers paid $810.4 million to settle age discrimination charges filed with the EEOC between 2010 and 2018 (excluding litigation).

These numbers are only going to get worse. By 2024, workers age 55 and older will represent 25 percent of the nation’s workforce, with the fastest annual growth rates among those aged 65 and older. Indeed, according to the Hiscox survey, 67 percent of surveyed workers age 40-65 plan to continue to work after they turn 66.

This trend is not without its cost to employers. Age discrimination hurts employers, and I’m not just talking about the $810 million paid in settlement costs.

  • It demotivates employees, which can hurt productivity, customer service, and product quality.
  • It causes a loss of talent and institutional knowledge, due to experienced workers leaving from a stalled career or hostile environment.
  • It causes employers to miss the opportunity of hiring and retaining workers who possess knowledge, experience, good judgment, and commitment to the job.

So, how can an employer help prevent age discrimination from permeating its workplace? The EEOC, in its State of Age Discrimination Report, published last year to commemorate the 50th anniversary of the ADEA, offers the following five suggestions.

1. Leadership needs to create and foster a workplace culture that is committed to a multi-generational workplace where all workers can grow and thrive, which extols ability and reject discriminatory stereotypes and words.

2. Employers and employees must recognize and reject stereotypes, assumptions, and remarks about age and older workers, and treat them no differently than stereotypes, assumptions, and remarks about sex, race, disability, national origin, religion, or other protected classes.

3. Companies should work to increase the age diversity of the workforce by hiring, retaining and engaging employees of all generations,

4. Businesses should implement recruitment and hiring strategies that avoid age bias by seeking workers of all ages and not limiting qualifications based on age or years of experience. These strategies should include training recruiters and interviewers to avoid ageist assumptions and common perceptions about older workers, assessing interviewing strategies to avoid age bias, and having an age-diverse interview panel for prospective employees.

5. Employers should develop retention strategies to keep older workers. I’ve written about this point before, which you’ll find here.
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Forced Retirement Is an Age Discrimination No-no

Jon Hyman The Practical Employer

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

WF_WebSite_BlogHeaders-11According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist — for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are — prejudice and false assumptions.”

Image: Slate

While not necessarily on point, this case does segue into an important issue — mandatory retirement. It’s still a fairly popular misconception that businesses can force employees to retire at a certain age.
In truth, with the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit — but do not require — mandatory retirement:

  • At age 65 of executives or other employees in high, policy-making positions.
  • At age 55 for publicly employed firefighters and law enforcement officers.

Forcing an employee out is the same as requiring an employee to retire. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other employee.

Treat the employee’s performance, not the employee’s age.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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The ‘Substantially Younger’ Test for Age Discrimination

Martha Knotts worked for the Grafton City Hospital until she was terminated at age 65. The hospital hired replacements who were 12 and 24 years younger than Knotts, but were over 40 years old.

Knotts filed a lawsuit in state court under the West Virginia Human Rights Act alleging age discrimination. The state circuit court held that Knotts could not establish a prima facie case of discrimination because her replacements were both over 40 and part of the protected class.

The West Virginia Supreme Court overturned its own “over 40/under 40” precedent, and reversed the circuit court’s decision. Instead, the state Supreme Court adopted the U.S. Supreme Court’s ruling in O’Connor v. Consolidated Coin Caterers Corp., holding that a prima facie age discrimination case’s focus should be on whether the discrimination occurred, rather than on whether a replacement’s age falls outside the protections for those 40 and older. A determination of whether a replacement is “substantially younger” than a terminated employee is a more “reliable indicator” of age discrimination than whether the replacement is not a member of the protected class. Knotts v. Grafton City Hospital, Case N. 14-0752, Supreme Court of Appeals of West Virginia (April 14, 2016).

IMPACT: Given today’s trend of “older” workers remaining in the workforce, it is not unusual for individuals 40 or older being hired and/or replacing older employees. Significant age disparity can be evidence of age discrimination even if the comparative employee is over 40, if that employee is substantially younger than the employee allegedly being discriminated against.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email editors@workforce.com.