Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘ADEA’

Runkel: Supreme Court Jumping the Gun on Section 1983 ADEA Case?

Saturday, October 5th, 2013

secunda-paulAt RossRunkel.com today:

SCOTUS: Can public sector employees skip the ADEA and sue directly under the constitution?

Or should this case even be before the Supreme Court?

Madigan v. Levin [Briefs at SCOTUSblog] is set for argument [this Monday] October 7.

‘Harvey Levin, a state employee, claimed he was fired because of his age. He sued his boss under the ADEA and the constitution. The boss claimed qualified immunity.

The trial court threw out the ADEA claim, kept the constitutional claim, and decided the boss did not have immunity.

The boss brought an interlocutory (pre-trial) appeal to the 7th Circuit, which decided (1) no immunity and (2) Levin can go ahead with his constitutional claim.

Primary issue: Whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures. That’s the issue everyone is talking about. For a good explanation, see Lyle Denniston’s discussion at SCOTUSblog.

Wait, wait, one more issue: Notice that the appeal to the 7th Circuit was interlocutory. Unusual. Allowed here because of the immunity issue. But the 7th Circuit also went forward with the ADEA-vs-constitution issue. I’d like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment. Am I trying to be too orderly here?

FWIW, I think the Court should kick back the case for a trial before deciding the case on appeal.  I am very much a proceduralist on such matters.

As far as whether a public employee should be able to bring a constitutional claim based on age discrimination in addition to a claim under the ADEA, I think they should be able to do so. My primary thinking is that you can get individual liability in a Section 1983 case, whereas you cannot under the ADEA.  Also, in light of Grosschanging the causation standard to “but for” in ADEA cases, there might be an easier cauasation standard under Section 1983.  In any event, this analysis is supported by a similar conclusion come to by the Court in the Title IX realm in the Barnstable case a few years ago.

The one difference between this case and Barnstable is that you do not have to exhaust administrative remedies in Title IX cases like you do under the ADEA, so that may be a distinction which might make this case come out differently.  Court might place importance on the gatekeeping function the EEOC plays in ADEA cases and this may be seen as an end-around for some public employees (though Madigan brought both claims so must have exhausted administrative remedies).

This article was originally printed on Workplace Prof Blog on October 3, 2013.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

It's A Long Road To Justice

Tuesday, December 7th, 2010

ellen simonFederal 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.

The Sixth Circuit Reverses

Burden of Proof Under The Title VII  And The ADEA

Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:

  • is a member of a protected class
  • objectively qualified for the position
  • considered for but is denied the promotion
  • an individual outside of plaintiff’s protected class is selected for the position

Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”

A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either

  • has no basis in fact
  • was not the actual reason, or
  • is insufficient to explain the employer’s action

It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross -- should continue to be analyzed under McDonnell Douglas.

The Court’s Analysis Of The Evidence

Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.

As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.

It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.

Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.

Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.

Relative Qualifications

As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.

In this case, the Court pointed to:

  • Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
  • Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
  • Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.

The Court stated:

Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.

Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.

Discriminatory Remarks

As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.

In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:

  • informed him that 34 years on the job was enough
  • joked about whether he had taken up “antiquing or traveling or something like that”
  • suggested that he should retire – a topic which Bartlett had neither broached nor considered

The Court stated:

Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’

Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.

Defendant’s Explanation Was Not Believable

In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.

As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.

The Court noted:

The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.

In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.

The case was reversed and remanded for trial.

Take Away

This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.

When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.

It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.

The result of what appears to be this employer oriented approach in discrimination cases, or as some call it  — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.

It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.

Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.

The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Age Discrimination Gets Attention Of Congress

Friday, May 14th, 2010

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.

image: www.conversantlife.com/files/imagecache/blog_wizard/files/blog_wizard/proof.png

*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

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

Wednesday, March 17th, 2010

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.

The Eleventh Circuit Reverses

Mixed Motive Analysis Wrongfully Applied

Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.

The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.

In the landmark Supreme Court case of Price Waterhouse v. Hopkins decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.

In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination. In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)

Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”

In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise. And so she lost as a matter of law.

The problem with the district court’s ruling — according to the 11th Circuit — is that the Supreme Court’s decision in Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)

Consequently, since the mixed motive burden shifting analysis was wrongly applied, the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff was reversible error.

The Jury Should Decide Whether Mora Was Fired Because Of Her Age

After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.

A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.

As the Court put it:

The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..

A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.

Given the disputed question of material fact, Defendant was unentitled to a summary judgment.

Take Away

It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.

In this case, Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.

It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial

It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can’t get her age discrimination case in front of a jury, I have a hard time figuring out who can.

image: lawblog.legalmatch.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

Eighth Circuit Sets Record Straight On Age Discrimination

Wednesday, September 30th, 2009

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.

The Lawsuit

Baker filed a lawsuit claiming age discrimination and retaliation under the Age Discrimination in Employment Act and under the Missouri Human Rights Act.

While it may seem hard to believe in the face of this record, the federal district court threw out the case and granted judgment in favor of Silver Oak on all claims stating that Baker:

  • failed to present any direct evidence that age was a motivating factor in her termination (a misinterpretation of the Gross decision)
  • offered no evidence that Silver Oak’s stated reasons for firing her were a pretext for age discrimination
  • did not engage in any protected activity which would support a retaliation claim

The Court Of Appeals Reverses

Baker appealed the incomprehensible ruling of the district court. The Eighth Circuit Court of Appeals reversed on all counts and gave Baker her day in court.

Here’s the gist of what the Court had to say.

Evidence of Age Bias

Statements by Lindsey (CEO) and Thomas (supervisor) — who participated in the decision to fire Baker — were evidence of a preference for younger workers over those protected by the ADEA.

As stated by the Court:

Lindsey’s statement to his management team that Silver Oak was ‘missing the boat by not hiring younger, vibrant people,’ and that employees ‘should start looking over applications better and try to consider hiring younger people’ is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker’s termination.

Other evidence that the Court considered to support Baker’s age discrimination claim included:

  • Thomas’ criticism of Baker for dressing like an old lady
  • Thomas’ comments about keeping up with younger employees
  • Baker’s refusal of Thomas’ directions to discipline older workers
Evidence of Pretext

The Court also found that Baker presented plenty evidence of pretext — meaning that the reasons given for the discharge were not believable. Evidence of pretext can give rise to an inference of age discrimination and can be proved circumstantially.  “Direct evidence” is not essential.

In this case, that evidence of pretext included:

  • Baker’s explanation for why the probation was not warranted
  • Silver Oaks’ failure to follow its normal progressive discipline policy
  • Shifting explanations for why Baker was terminated:

As the Court stated:

Not every supplement to an employer’s initial statement of the reasons gives rise to an inference of pretext, but substantial variations raise suspicion.

[The evidence of pretext] is combined with evidence from which a jury could find that the management of Silver Oak harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce.

Viewing all of the evidence together, we conclude that Baker has presented a submissible case of age discrimination under the ADEA.

Retaliation Claim Survives

Baker claimed that she was retaliated against because she opposed Silver Oak’s conduct which she believed to be unlawful age discrimination.

Baker filed an affidavit in which she stated that she repeatedly told Thomas:

  • That terminating older employees was wrong
  • You can’t get rid of employees just because they’re old

It’s a technical argument but in sum, the district court ignored the evidence because it was presented in an affidavit and not in Baker’s deposition or other court pleadings.

The Eighth Circuit held that the district court made an error in striking Baker’s affidavit and allowed Baker’s retaliation claim to proceed.

What’s Important About This Case

Everything but here’s the big three:

1.The case gives excellent illustrations about the kind of evidence from which a jury may infer age discrimination — including hostility towards older workers and/or a preference for younger ones.

2. On the subject of pretext the Court makes note of a failure to follow normal progressive discipline policies, and shifting explanations for the discharge.

This kind of evidence is quite common in discrimination cases, and it’s very helpful for employees to have a Circuit Court of Appeals affirm it as proof of pretext.

3. While it’s a technical point, mostly for the lawyers, it’s extremely helpful that the lower court was reversed because it struck Baker’s affidavit.

Clients don’t always remember everything important about their case when interrogated in a lengthy deposition. Many times salient points are not ever asked.

Consequently, adding important evidence to the record by way of a sworn affidavit is often necessary to fill in the evidentiary gaps. The Eighth Circuit recognized this necessary practice and affirmed its propriety.

It’s really good news for plaintiffs in discrimination cases and their lawyers.

All in all, it’s just a great case for employees who are unfortunate victims of age discrimination. It should also be instructive to employers as to what illegal age discrimination can look like in front of a jury.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This post originally appeared in Employee Rights Post on September 28, 2009. Re-printed with permission by the author.

image:therawfeed.com

Are Fox and American Idol Guilty of Age Discrimination?

Tuesday, April 21st, 2009

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.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to:

  • all employees and job applicants.
  • all terms and  conditions of employment including: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is crystal clear that an employer can not lawfully have a rule which prohibits it from employing anyone over the age of 30.

There are times when employers can lawfully use age in making employment decisions.  For example,commercial airline pilots are required to retire at a certain age. It’s simply not safe to have 80 year old pilots flying commercial jet planes with hundreds of  lives at risk.

For that logical reason, the Age Discrimination in Employment Act permits exceptions for:

a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business

That provision, commonly called the “BFOQ” exception, allows airlines as well as other industries (where safety, for example, may be an issue) to require retirement at a designated age.

But singing?  What could possibly be the bona fide occupational justification for statinging that an excellent singer has to be under 30?  Paul McCartney and Barbara Streisand still sound just fine. In fact, it seems to me that many singers get better with age.

The problem with this scenario is that the Age Discrimination in Employment Act prohibits age discrimination in employment and folks on American Idol are not applying for jobs, so the the act arguably does not apply.

I am not, however, completely convinced that’s the end of the story and this is why.

American Idol is broadcast by Fox. Fox Broadcasting Company is a network that is heavily regulated by the federal government.

In fact , Fox is licensed by the Federal Communications Commission to do business and is subject to the Cable Television Consumer Protection and Competition Act of 1992 as well as a host of other federal laws.Television networks have all sorts of civil rights compliance requirements and regulations which prohibit discrimination.

While I understand that this is not a case of discrimination in employment, it certainly seems to me that it may be a case of discrimination in the award of a contract.

This is my argument:

  • when you win American Idol you get a recording contract
  • the contract is offered on to those under 30
  • Fox Broadcasting, through American Idol, is committing age discrimination in the award of contracts by not allowing those over 30 to compete.

I am not entirely sure whether the argument is constitutionally sound, but I am not convinced that it’s not.

As a constitutional matter, if a governmental entity awarded contracts to whites only,  we would no doubt be outraged. The government would have the impossible burden of showing that it had a “compelling governmental purpose” for doing so and the alleged justification would be given “strict scrutiny”. In other words, we would have little trouble proving that the contract is unconstitutional and illegal.

But even at the lower level of constitutional scrutiny used in cases of gender or age discrimination, how could  a contract awarded only to singers under the age of 30 be “rationally related to any legitimate governmental purpose” ? ( if Fox is considered to be taking governmental action because of it’s federal license or because it is heavily regulated by the federal government a constitutional analysis could kick in)

Yes, it’s all quite complicated.  Constitutional law is not easy. But it’s not hard to ask this question: If American Idol only permitted white individuals to audition, or permitted only men to try out, how would we feel about it and what would we do?

Putting all of the legal complexities aside, from one Simon to another, I feel compelled to ask: why can’t the show let everyone try out  to be the next American Idol?

Equal opportunity in England, but not the United States, just doesn’t seem right.

image: weblogs.newsday.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

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