New York Employment Lawyer Blog

Marilyn Ducksworth, the long time Director of Communications for Penguin Group USA, filed a complaint of age discrimination against the company on September 5 in New York Supreme Court. As reported by The Washington Post and Publishers Weekly, Ducksworth, who is presently fifty-six years old, worked with Penguin Group as Director of Communications for 27 years and worked with authors such as Betty White, Ken Follett and Pulitzer Prize winner Junot Diaz.

In her complaint, Ducksworth alleges that Penguin discriminated against her by, among other things, diminishing her executive responsibilities, "dismantling her staff,” and “interfering with her internal and external professional relationships.” Ducksworth alleges that Susan Petersen Kennedy, Penguin's President, "began a campaign to marginalize Ducksworth and other older, long term members of Ducksowrth’s staff.” She also claims that one Penguin executive told her that the publisher wanted employees who were “faster, stronger and more nimble because the older, slower version doesn’t work anymore.” Ducksworth, in her complaint, states that a new plan was enforced by Kennedy to remove Ducksworth from overseeing corporate communications and from her roles at Putnam and Riverhead. Ducksworth claims that she was required by Kennedy to demote two key publicity team members, both of whom were about 60 years old, and replace them with two employees under 40 years old.

Ducksworth resigned from Penguin last week and, since her resignation, at least one industry insider, Robert Gottlieb, has praised her career. Gottlieb, a literary agent and chairman of Trident Media Group, posted a message on an online industry newsletter, PublishersMarketplace.com, which stated, “She was a major part of Tom Clancy’s success and Catherine Coulter’s to name a few. During her time at Penguin her management of big authors’ careers was a stunning success. She was always a team player. Her professionalism is unmatched. Her caring work for her authors was boundless.”

Ducksworth is not the only Penguin employee complaining of age discrimination. Min-Ho Cha, another member of Ducksworth staff, left her employment at Penguin in June after her charges of age discrimination were allegedly met with retaliatory actions. Min-Ho Cha is 49 years old.

Eric Glass, Penguin spokesman, issued a statement denying Ducksworth’s claims, “If a complaint is filed, the true facts will be presented to the court in due course. We can state categorically that it was Marilyn Ducksworth’s decision to resign and that Penguin does not condone, nor was there, any age discrimination or retaliation involved in her decision to leave.”

Additional coverage of this story can be found in the Washington Post and in Publishers Weekly.

A former Vice President at MTV is suing its parent, Viacom for discrimination. Andrea Fair who was hired by MTV in 2005 and promoted in 2008 has claimed that she was treated differently by her male supervisor on account of her age and her gender. Fair, who has more than 20 years in the music industry, has alleged that she was bullied by her male manager and that the company failed to take any action in response to her complaints. Specifically, Fair alleges that her responsibilities were diminished and her role as VP minimized because of her age and her gender.

The suit included allegations her male manager would routinely cut her off on conference calls and accused Fair of being “too emotional” which is a common complaint that women often hear in the workplace based on outdated gender stereotypes.

Fair has alleged that younger women were given preferential treatment and positions for which they were not qualified. The complaint alleges that part of the age and gender discrimination was that the men in senior management would give the younger and less qualified employees important assignments such as sending them to the MTV movie and music award shows and assigning them video shoots with celebrities such as Rihanna. Specifically, Fair has claimed that her manager told her that the company did not have the money to send her to the awards shows, but then the company sent male colleagues and a younger female colleague.

The controversy came to a head in 2010 when Human Resources notified Fair that the younger woman had lodged a complaint against her for being aggressive and controlling. Viacom ultimately fired Fair as a result of these allegations which has only fueled Fair in her effort to expose the unequal standards that exist at the company. For example, Fair has cited a list of male employees who were not punished by the company for their own misconduct.

Fair is not just seeking her lost wages and other compensatory damages but that the company be directed to take affirmative steps to ensure that alleged unlawful practices be eliminated.

There have been more and more discrimination suits brought by women at Fortune 500 companies in recent years which is a signal that women in the workplace are still being victimized because of their gender. The Equal Employment Opportunity Commission’s reported statistics on sex [gender] discrimination shows that in the last four years reported cases of discrimination have increased over the prior years. One explanation for this upswing is that in a weaker economy, when jobs are being eliminated, women are the first to be targeted.

Schwartz & Perry represents plaintiffs in cases of employment discrimination and retaliation under the federal, state, and city laws. Additional information regarding the relevant human rights laws is available on Schwartz & Perry’s website, which is at www.schwartzandperry.com.

Earlier this summer, over the course of several weeks, a major age discrimination trial took place in Federal Court in Downtown Manhattan. The suit was brought by former WPIX-Channel 11 news director Karen Scott, who is now 63 years old. The allegations centered on Scott’s claims that she was fired in 2009, when she was 60 years old, as part of a concerted effort to remove older employees from the workplace. The defense argued that age did not play a role, rather, it was lower ratings which in-turn led to lower advertising revenue for the station.

According to New York Post coverage of the trial, former anchor Kaity Tong testified in support of Scott’s claims. Tong believed that she, herself, was given a negative evaluation and forced to take a pay cut when she was in her early-60's. However, during their second day of deliberations, the jury found for the station, finding that the Scott did not meet her burdens in establishing that age unlawfully played a role in her termination.

The Scott case is only one of several claims brought for age discrimination by former WPIX-Channel 11 employees. Both Sal Marchiano and Larry Hoff have also have pending age discrimination claims.

This case, although the Plaintiff did not prevail, serves to highlight just how rampant age discrimination is in the workplace. As the working population ages, leadership in organizations desires to replace older workers with younger ones. These decisions are not based on merit, rather, they are based on an unlawful ageist bias against older workers and in favor of younger.

The Waldorf-Astoria is being sued by Samir Abdel-Mesih, 53, for age and race discrimination in Queens Supreme Court, in New York. Mesih started as a waiter in 1987 and was promoted to banquet captain in 2002. According to the complaint, The Waldorf bosses are “getting rid of the old guys” in exchange for younger, white captains.

Last year, the percentage of Mesih’s tips was cut in half despite the number of guests he was assigned nearly quadrupling. Nine captains ranging in age from 50-91 lost their jobs. Thus, Mesih’s lawyer expects that other captains who have been let go will be joining the law suit.

Younger white managers were hired to do the same job as captains like Mesih. Mesih is suing for lost wages and emotional distress, though he is still employed by the Waldorf.

This entire article is available at NYDailyNews.com.

When an employer decides that relocating their company is a good business decision, employees are faced with the ultimatum - move with the company or loose your job. On it’s face, relocation does not seem discriminatory, but as employers cut back on relocation assistance it makes it extremely difficult for some groups of people to move with the company. Older employees and employees who do not make a lot of money are often the most adversely effected by relocations.

An employer has no legal obligation to pay for an employee’s relocation expenses. Employers can choose to pay for relocating employees with key skill sets, but choose not to provide any assistance to other employees and this is not considered discriminatory. Employees may have to endure the entire cost of relocating, which could mean short selling their homes and increasing their debts in order to keep their jobs.

Even though entire groups or departments may be relocated to another office, the employees who are most able to make the transition tend to be younger, financially stable people. Older employees who have spent their lives raising families in a particular area are less inclined to relocate because of the strong ties they have to their community. Familial connections or a spouses’ job may make relocating very difficult for many older individuals.

Employees may be also hesitant to move to a new place, especially if there is a dramatic difference in the cost of living. If an employer is not offering relocation assistance, the shock of pricing differences can seem staggering. This makes it extremely difficult for older employees who are saving for retirement to bear the costs of relocation. Employees approaching retirement have to make sure they are financially prepared for the future and often cannot budget in such a drastic change in their living situation. Even though employment relocation may disproportionately effect older employees, as long as the relocation did not specifically target older people, relocation may be considered a legitimate business decision and the courts may be reluctant to intervene in those circumstances.

MSNBC recently had a feature on this topic, as well as additional information.

Last Friday, Rochelle Cohen filed a lawsuit in federal court for the Southern District of New York. The suit claims Ms. Cohen was discriminated against as a result of her age and gender by her former employer, the Bank of New York-Mellon.

The bank claims Ms. Cohen’s position in the Private Wealth group was eliminated despite Ms. Cohen being employed with the Bank for more than ten years and maintaining many significant client relationships.

One of the plaintiff’s claims is that she was unjustly compensated as compared to her male colleagues. Ms. Cohen claims that the male employees were paid more than the female employees for comparable work.

More information is available here.

Major New York City Restaurant, the Saigon Grill is presently the subject of protests and pickets by its employees. The employees of the Vietnamese restaurant are claiming they are being treated unfairly as a result of their age.

One of the protesters claims they fired him after complaining about alleged age discrimination. They also claim that waiters and busboys who were over the age of 40 were fired, as well, because of their age. Both age discrimination and retaliation after complaining of discrimination are protected under the employment discrimination laws.

In 2008, thirty-six Chinese employees of the restaurant were awarded a $4.6 million settlement for labor law violations such as failure to pay overtime and paying some employees less that $2 per hour.

The full text of the article can be found here.

The New York Mets baseball team recently made headlines by hiring as its General Manager and Manager, two individuals who are both over sixty years old. This runs contrary to the current trend in the workplace of "getting younger."

The Mets hired Sandy Alderson, who is 63 as the General Manager, and Terry Collins, who is 61 as the team's on-field Manager. Both have many, many years of experience and have been involved in the game for over thirty years apiece. The preference of experience over youth is something that many organizations have not put an emphasis on in the hiring process.

Despite the Mets hiring two older individuals, age discrimination is something that is very prevalent in the workplace. Schwartz & Perry specializes in representing individuals in all forms of employment discrimination.

Catherine Herridge, a reporter at Fox News, claims that she was subjected to gender and age discrimination and that when she complained to Fox, she suffered from retaliation. Fox News denies these charges.

In 2008, Herridge's employment contract was up for renewal. Fox insisted on putting language in her employment contract which would restrict her from making any employment discrimination complaints in the future. Because she refused to sign the contract with such language included, Fox claims she became an "at-will" employee without any job protections.

It was only after Herridge filed a charge of discrimination with the EEOC, and an EEOC investigator conducted an on-site investigation, that Fox agreed to take out the retaliatory language and presented Herridge with a new employment contract.

Schwartz & Perry specializes in claims involving employment discrimination in all its forms. Additional information is available on our website, at www.schwartzandperry.com.

The Equal Employment Opportunity Commission (EEOC) filed suit against Asian World of Martial Arts, Inc. on behalf of Morris Pashko for violating the Age Discrimination in Employment Act. According to the suit, the company’s president had implemented a mandatory retirement policy , which resulted in the termination of every employee over the age of 67. Mr. Pashko was with the company for over twenty years.

In 2009, 22,778 age discrimination charges were filed with the EEOC, which further demonstrates just how prevalent age discrimination is in the workplace.

Schwartz & Perry has unique experience in the field of age discrimination and regularly lectures on the subject at Bar Associations and CLE events.

More information can be found here.

The EEOC filed an age and sex discrimination suit on behalf of four female lawyers against the Port Authority of New York & New Jersey, alleging that the agency fired senior lawyers and hired younger, less experienced ones within months, and that it paid male lawyers thousands more than their female counterparts.

In its filings, the EEOC pointed out a statement made by an executive that the agency was going to be remade with “young fresh faces.” The Port Authority had also issued a memo in 2007, discussing the difficulties in its “ability to seek out, attract and retain young attorneys.” A spokesman for the agency declined to comment.

A leading waste collection agency has settled a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) on behalf of 21 employees who were allegedly discriminated against as a result of their age.

All of the employees were over the age of 40 and were reportedly terminated or denied job transfers which were offered to younger employees with lesser qualifications. The company also engaged in a form of hazing called “break him off” in which the older employees would be worked to the point of exhaustion.

A ruling by the California Supreme Court makes it easier for employees to get their discrimination claims heard in court. Under the old rules, a lawsuit could be tossed out if the employer proves that the discriminatory comments were “stray remarks.” This ruling allows discrimination cases to be heard by a jury even if the comments are made by employees who are not in a position to fire, or if the comments happened long before the decision to fire is made.

In this claim, a 54-year-old employee alleges that he was fired because of his age. He says that executives called him an “old man,” said that he wasn’t a good “cultural fit,” and that his ideas were “too old to matter.” The company claims that he was fired due to poor performance.

An employee ranked in the top third to fifth percentile in his annual review and eventually rose to become Administration Vice-President in a state governmental agency. After being demoted in 2000 and 2003 and being replaced by someone younger, Gross alleged that he had fallen victim to age discrimination. However, the Supreme Court ruled that if factors other than age were involved, the employee has to prove that age was the determining factor in an alleged act discrimination. If age was not found to be a determining factor, the employee will have no such right to sue.

Congress is now attempting to undo the ruling by amending the Age Discrimination in Employment Act through H.R. 3721 - Protecting Older Workers Against Discrimination Act. This bill would apply a lower standard or proof and authorize the “mixed motive” cases, (instances that do not involve age as a determining factor) in Title VII of the Civil Rights Act with regard to age discrimination in the workplace.

The Civil Rights Act also protects individuals from employment discrimination the basis of race, color, national origin, sex or religion. If the bill is passed, the burden of proof will be shifted from the employee to the employer, and it would be the second time Congress responded to a Supreme Court decision related to employer discrimination in the last two years. The first was the Lilly Ledbetter Fair Pay Act of 2009, affecting equal pay lawsuits based on sex.

In this period of a recession, age discrimination complaints increased by 33% according to the Equal Employment Opportunity Commission. Older workers are finding it more difficult to be hiredor keeping jobs. The Bureau of Labor Statistics found that it takes an average of 44.5 weeks for workers between the ages of 55 and 64 to find a new job compared 35.1 weeks for the population as a whole.

Trying to overcome age bias hurdles, older workers may edit their resumes down to mask their age and experience when they apply for jobs below their level. While this tactic may get older workers an interview, interviewing with a much younger employer may put a halt to getting the jobs. Younger managers can be intimidated by older workers with more experience and may feel they have difficulty in supervising older workers.

Additional information on this issue can be found here.

Increasing unemployment has resulted in more and more seniors struggling to make ends meet. Poverty amongst the elderly is due in part to the rising number of layoffs during the recent economic downturn. Age discrimination cases have been on the rise as well.

Poverty amongst the elderly is a significant problem in the United States today. The AARP reported that nearly 10% of adults aged 65 and older live in poverty. Additionally, nearly 4 million older Americans do not have enough money to pay for their basic needs.

The elderly poverty problem has been compounded by the fact that many seniors are unaware of benefits available to them. Many programs exist which offer assistance for food, rent, and utility bills. Greater outreach will help struggling seniors take advantage of these needed services.

Age discrimination is one of the most prevalent forms of discrimination in today’s workforce. As the recession drags on, older workers are the most at-risk demographic for being laid off or fired. Companies across America are viciously and unlawfully forcing out older, more experienced workers and replacing them with younger, less experienced workers.

The AARP reported that from 2001 to 2009 the number of unemployed workers age 55 and older shockingly increased by 331%. The Equal Employment Opportunity Commission (“EEOC”) stated that the number of age discrimination charges have jumped by 29% since 2007. The EEOC also reported that an astounding 60% of people age 45 - 74 have experienced or observed age discrimination in the workforce.

With these statistics, it’s undeniable that age discrimination is the most rampant form of discrimination in today’s workforce, and as the recession wreaks havoc on our economy, these statistics will likely increase.

This past week, after six years of various lawsuits regarding employment discrimination at the hand of Atlanta homebuilder John Wieland Homes and Neighborhoods Inc, the remaining victims of the alleged sex and race discrimination finally received some closure.

The U.S. Equal Employment Opportunity Commission settled with John Wieland Homes for $378,500 and an agreement that the company, within six years, will hire at least ten African Americans and women and place them in management positions. Despite claiming that his company consistently maintains a commitment to equal opportunity and never engaged in any of the alleged discriminatory acts, Wieland is also now forced to implement nondiscriminatory hiring and training practices including targeted recruitment and advertising.

The biggest question now is whether or not the settlement is sufficient enough in deterring such conduct.

New York’s local news station WPIX has recently made its own news. Former news director Karen Scott, 60 years-old, filed an age discrimination lawsuit in Manhattan federal court against WPIX. Ms. Scott was terminated by WPIX in August 2009 and believes that the decision was based solely on her age.

The suit claims the station had an ageist attitude instilled by a former general manager at the station. The attitude is reflected in the terminations of Sal Marchiano and Kaity Tong, and the demotion of Marvin Scott. At age 66, Sal Marchiano, WPIX’s former sportscaster, was forced into retirement in 2008. Kaity Tong, at 59 years-old, was also forced to quit when WPIX bombarded her with more work. The station’s 72-year-old veteran reporter Marvin Scott’s (no relation to Karen Scott) role was greatly reduced. Ms. Scott’s replacement William Carrey is approximately 10 years younger.

More information is available here.

Brian Reid sued Google in 2004 for age discrimination and claims that when he was fired for being a poor “cultural fit” that these words were actually the internet giants code words for ‘older worker.’ Throughout Reid’s employment with Google, his co-workers referred to Reid as an “old fuddy duddy,” “old guy.” Moreover, Google’s high management referred to Reid as “fuzzy,” “lethargic,” and once even commented that Reid’s ideas were “too old to matter.”

Google hired Reid in 2002, when Reid was 50, as the Director of Operations and Engineering and had consistent performance reviews, but Reid was demoted after two years to a position that had no budget or staff and was quickly fired four months later. Reid claims that he was fired because of his age, however, Google argues that Reid’s position was eliminated and that there were no other positions for which Reid was qualified.

Google contested the California’s appeals court 2007 decision, which held that Reid had presented sufficient evidence of age discrimination and is entitled to a trial before a jury, stating that no one in a position of authority over Reid’s employment made any discriminatory remarks to Reid. However, Reid argues that the remarks illustrated Google’s corporate atmosphere and that a jury should determine whether Reid’s termination was a discriminatory act. California’s high court is issuing a decision in 90 days as to whether the case should go before a jury.

News articles related to this case can be found here, here, and here.

A suit has been filed by the EEOC in New York against AT&T accusing the telecommunications company of discriminating against a class of retired AT&T workers. The EEOC is alleging that AT&T is refusing to allow these workers reemployment simply because they chose to retire under early retirement plans. Due to this action, a disproportionate number of older workers remain unemployed. Each of the former employees in the suit is over the age of 40, and the EEOC is claiming AT&T breached the Age Discrimination in Employment Act (ADEA).
According to the EEOC, the early retirement plans offered by AT&T effectively exclude elderly workers reemployment regardless of their previous work experience. EEOC acting chairman, Stuart Ishimaru, believes that this case illustrates the EEOC’s commitment to enforcing the ADEA and protecting older workers. Spencer Lewis, New York District Director for the EEOC, added that “all employees, regardless of their age, should be permitted to complete for jobs equally.”

Victims of age discrimination will have a lower burden of proof on their age-discrimination claims under legislation issued today by congressional Democrats.

The bill calls for employers to bear the burden of proof by showing they complied with federal age-discrimination laws. In June, the U.S. Supreme Court decided that employees were required to prove that age was the deciding reason for termination and not one of several reasons such as salary cut backs.

The bill was introduced as increasing unemployment has been accompanied by a rise in the number of age discrimination claims filed throughout the country. According to the Equal Opportunity Employment Commission, about 25,000 age-discrimination claims were filed in 2008, a 30 percent increase from 2007.

The bill would overturn the U.S. Supreme Court’s decision in Gross v. FBL Financial and make it easier for older workers to show they have been victims of age discrimination.

Thirteen former waiters at the “old” Yankee Stadium buffets sued the New York Yankees today for age discrimination. The waiters, ranging in age from 66 to 80 were laid off when the team moved to its new stadium earlier this year. The complaint, filed in the New York Supreme Court, Bronx County, alleges that the waiters were fired in favor of younger, cheaper help and told their services were no longer needed because the new ballpark did not have buffet restaurants. However, the new stadium has two buffet restaurants.

Pedro Valdes, one of the 13 claimants, says the Yankees asked him, “what could someone 73 years old” offer the team. The claimants are requesting their jobs back and $28,000 in back pay for the season they missed. The Yankees had no comment on the pending suit, but pointed out that a number of senior citizens work at the new stadium, including nine people who are in their 80s.

In Hoffman v. Parade Publications, an age discrimination case, the Appellate Division, First Division, held that New York courts have subject matter jurisdiction over some employment discrimination cases where the employee worked outside of New York City.

Howard Hoffman was a 62 year old employee of Parade Publications, which was headquartered in New York City. Hoffman, however, worked out of an office in Atlanta, Georgia. At the beginning of 2008, Parade Publications decided to close its Atlanta office and terminated Hoffman’s employment. Claiming age discrimination, Hoffman brought claims under the New York State Human Rights Law and the New York City Human Rights Law. The trial court granted the employer’s motion to dismiss for lack of subject matter jurisdiction, relying on a 2005 First Division decision, Shah v. Wilco Systems, Inc. In that case, the court relied on an “impact” rule, which requires that the impact of the discrimination must be felt inside New York. In what the Hoffman court described as dicta, the court also suggested that this impact rule is not satisfied if only the employment decision is made in New York.

The Hoffman court, however, distinguished Shah, pointing out that in the earlier case there was no evidence that any relevant events occurred in New York. Hoffman, however, alleged that the decision to terminate him was made in New York City. As such, the court ruled that the New York courts had jurisdiction over Hoffman’s claims, holding that the employment decision alone is sufficient to establish subject matter jurisdiction under the impact test.

More broadly, this case will likely expand the reach of the New York Human Rights Laws. If an employee can show that an employer’s discriminatory employment decision is made within city or state, the employee may bring a claim the New York Human Rights Laws, even if the employee worked outside the city and state.

In the midst of a fledgling airline industry, an age-discrimination suit filed against airline manufacturing giant Boeing, has tarnished the image of what was once considered the “friendly” skies.

Former Boeing workers have sued the Chicago-based company and Spirit Aerosystem claiming that they lost their jobs because of their age. The lawsuit was filed by 90 former employees.

Boeing has denied that any of its employment decisions were made based on age, although Boeing has acknowledged that it evaluated the correlation between wages and age brackets.
According to the depositions of former high-level managers, the company officials indicated that Boeing and Spirit considered older workers to be more expensive.

Last month, in a 5-4 decision the Supreme Court ruled that workers bear the burden of proving that age was the key factor, in a demotion or layoff. That changed a long-standing interpretation of the laws, which called for a worker to show that age was just one factor in the employment decision.

In another 5-4 ruling last year, the Supreme Court held that Kentucky’s retirement system does not discriminate against older workers, even though the system deprives employees older than 55 of certain benefits.

Given the recent change in the law, it will be interesting to see how this case will be decided, and what, if any, relief will be granted.

The Equal Employment Opportunity Commission (“EEOC”) has begun considering much-needed rules to protect the older members of the workforce. In the last year, the EEOC has seen a 29% increase in age discrimination claims, more than any other employment bias claim. In fact, other than retaliation, age discrimination has become the most common claim in employment related cases. This is much more troubling in light of the recent 5-4 Supreme Court decision in Gross v. FBL Financial Services Inc., where they decided that people bringing suit on an age discrimination claim would be burdened with a higher standard of proof than those bringing suit on the basis of racial or sexual discrimination.

The Gross decision requires that the plaintiff bringing an age discrimination claim prove that age was the key factor in a demotion or layoff. This is in contrast to where previously, one bringing an age discrimination claim only needed to prove that age was a factor, and the burden shifted to the employer to prove the existence of a valid reason for the adverse employment action. Coupled with another recent 5-4 Supreme Court decision - where Kentucky’s retirement system was found to be not guilty of age discrimination despite the removal of certain benefits for employees 55 and older - age discrimination claims seem to be under attack. Fortunately, the EEOC and the AARP have now taken the first step towards remedying this problem.

A lawsuit filed in federal court on June 26, 2009 charges the Campbell Soup Company with racial discrimination in that the company routinely promoted less qualified white account executives over its black employees. The class action, filed in Camden, N.J., charges that Campbell Soup Co.’s white managers discriminated in promotions while using a secret method in which job openings were not posted and objective criteria were not used to assess applicants.

The named plaintiff, Chester Hicks, is a fifty-eight year old black man who has worked for Campbell’s in Houston as a territory manager for twenty-four years. The suit alleges that, despite a long history of awards, he has been unable to advance beyond his entry-level job. The class action seeks to represent all black employees holding salaried positions at Campbell’s in the United States after July 7, 2003.

The suit claims that Campbell’s discriminated due to race, as prohibited by Title VII of the Civil Rights Act of 1964 and 42 U.S.C sec, 1981. The suit further alleges that Hicks was denied promotions due to age discrimination in violation of the Age Discrimination in Employment Act (ADEA).

In January 2004, Hicks lodged a complaint with the Equal Employment Opportunity Commission (EEOC). In August 2006, the EEOC determined that there was probable cause that Campbell’s had violated Title VII of the Civil Rights Act of 1964 by failing to promote Hicks due to racial discrimination. The EEOC failed to mediate the matter and issued a right-to-sue letter on April 2, 2009, which gave Hicks 90 days to file suit.

In a recent case, the Utah Supreme Court held that a fired clinic physician could not proceed with an age discrimination suit under the Utah Anti-Discrimination Act (“UADA”) because the clinic from which he was dismissed employed fewer than 15 individuals. Despite the appearance of clear age discrimination as evidenced by the clinic’s president stating he “didn’t know how much longer you older guys wanted to work” and “couldn’t pass up this opportunity to employ a full-time physician,” Utah relied on similar California Supreme Court reasoning in determining that the UADA did not apply to this particular age discrimination case due to the small work force employed by the clinic.

However, many states, including Maryland, Washington, and West Virginia, have decided to interpret their age discrimination and sexual discrimination statutes more broadly. These states have focused on aspects of the law such as Marlyand’s general prohibition of discrimination by any employer or a simple determination that the statute itself creates a clear public policy against any form of discrimination. The Ohio Supreme Court also bypassed the language in their state’s law that only prohibited employment discrimination for employers of four or more persons by finding that the statute did not preempt any public policy based claims of sexual discrimination.

The message here is clear: even if a state statute may attempt limit age discrimination or any other form of employment discrimination to larger employees, state supreme courts have proved willing to overlook these restrictions based on public policy. Furthermore, it seems feasible that, if enough states decide to go down this path, the United States Supreme Court may at some point in time decide that public policy concerns trump the restrictions established by the federal Age Discrimination in Employment Act.

In light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, the U.S. Equal Employment Opportunity Commission will hold a public hearing Wednesday, July 15, 2009, at 10 a.m. Eastern Time, at 131 M Street, NE, Washington, DC., to discuss age discrimination in employment.

Experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

In a recent case, Gross v. FBL Financial Services, Inc., the U.S. Supreme Court, in a 5-4 decision, increased the burden of proving age discrimination under the federal Age Discrimination in Employment Act of 1967 (ADEA). Prior to this decision, if a plaintiff could prove that age was a motivating factor in her or his dismissal or demotion, then the burden shifted to the employer to prove that there was a legitimate reason for the employment decision. In Gross, however, the Supreme Court rejected the burden-shifting framework. Instead, plaintiffs will now be required to prove that age was the but-for cause of the adverse employment decision, i.e. that age was the deciding reason. The Court’s decision only applies to age discrimination cases. The burden-shifting framework still applies to claims of discrimination based on race, sex, religion, or national original - which are covered be a different statute.

This decision will make age discrimination claims under the ADEA more difficult to prove. Workers rarely have access to the decision-making process and are not usually told directly that their demotion or dismissal is due to their age. As a result, obtaining evidence that age was the deciding factor in their employer’s decision will usually be very difficult.

Senator Patrick Leahy (D-VT) compared the Court’s decision to its 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., also a 5-4 decision. In that case, the Court held that a woman who had long been paid less than men for the same work could not sue because she had not learned about the discrimination until after the statute of limitations had expired. Congress reversed that decision at the beginning of 2009. It is now up to Congress to reverse another Supreme Court decision that has narrowed federal civil rights protection in the workplace.

In a lawsuit announced July 6, 2009, the EEOC accused Kmart Corporation of subjecting a 76-year old woman to age discrimination, retaliation and constructive termination.

Age discrimination and retaliation for reporting discriminatory conduct constitute a violation of the Age Discrimination in Employment Act (ADEA). The EEOC alleges Kmart was in violation of the ADEA for failing to investigate and correct the hostile work environment after the woman gave notice of discriminatory conduct against her. The woman alleged that the pharmacy manager accused her of being too old to work, requested that she retire and made derogatory comments on performance evaluations. This conduct in effect forced the woman into resignation.

After failing to successfully reach a settlement, the EEOC brought this suit seeking lost wages and liquidated relief. Federal laws prohibiting employment discrimination are enforced by the EEOC.

A federal judge in Newark, N.J., has construed the Lilly Ledbetter Fair Pay Act as
extending workers' time to sue only for claims based on pay bias. Michael Richards, a
48-year-old man of Asian descent alleged that he received unjustified low ratings in his job on
account of his race and age and in retaliation for his complaints about unfair treatment.

U.S. District Judge Katharine Sweeney Hayden wrote in Richards v. Johnson & Johnson,
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context." However, while the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.

Under the ruling, the plaintiff is still allowed to pursue his race and age discrimination
claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law
Against Discrimination.

In 2009, the New York Yankees opened a majestic new state-of-the-art stadium, replacing the legendary cathedral that had housed the team for over eighty years. The theme of replacing the old has not stopped there, according to a former long-time employee. JohnVendikos, who worked as a bartender at the old Yankee Stadium’s Stadium Club for twenty-seven years, filed a complaint with the Equal Employment Opportunity Commission on May 26, alleging age discrimination by the Yankees.

Despite his long-time employment, the team informed the 73-year old Vendikos that he would be required to re-apply for his job when the new stadium opened across the street. He dutifully complied with the demand, since he wanted to continue to work for the Yankees.
Vendikos said that after waiting in line for three hours to be interviewed with Legends Hospitality, the new merchandising/concessions company co-founded by the Yankees, the interviewer asked him, “Why should I hire you? You’re an old man!” Vendikos thought the interviewer was joking, but when he found him to be serious, Vendikos was shocked and insulted. Then the veteran drink-server, who had been a bartending staple at the stadium since the early 1980s, never even received a phone call from the Yankees.

A Yankees spokesperson told the New York Post that the team has hired many people over the age of 65 at the new stadium and that the organization did not discriminate against Vendikos.

Vendikos’s attorney Lenard Leeds sees it differently, stating, “We can’t believe that after 27 years, that John was told you’re just too old. We wonder what George Steinbrenner would say. He used to serve George Steinbrenner.” Leeds says that this is a textbook case of age discrimination.

In the current economic climate, many people are finding themselves out of work. People who have spent years working for the same company are finding themselves spending their days searching for jobs. While many find the task difficult, those aged 45 and over have the hardest time landing that new job. A recent New York Times article found that not only did it take longer for this age group to find jobs, 22.2 weeks as compared to 16.2 weeks for their younger counterparts, but they also faced a much steeper drop in earnings once they found a new job. In 2005, a professor at Texas A&M University conducted a study in which she sent out 4,000 resumes for a hypothetical woman changing only the high school graduation year. She found that workers under 50 were 40 percent more likely to be called for an interview.

The article continued by documenting the plight of older, laid off workers, many of whom have children already in college or attending in the next few years. These workers are frustrated with their inability to change their situation. Some have resorted to thinking about a change in career, hoping that a different career will be easier to break into. Either way, these workers feel sure they are being discriminated against because of their age, something they recognize each time they interview.

Howard Hoffman, a traveling salesman who resided in Atlanta, Georgia, brought an age discrimination suit against his former employer Parade Magazine, a New York State employer, after he was terminated and replaced by a younger employee. Hoffman received the phone call informing him of his termination from Parade Magazine while he was sitting on a plane in Atlanta.

Parade moved to dismiss the claim on grounds that New York court lacked subject matter jurisdiction, since the termination did not occur in New York City or New York State citing Shah v. Wilco Sys., Inc. 27 A.D.3d 169 (N.Y. App. Div. 2005). Shah had held that “the locus of the decision to terminate is of no moment, and that what was significant is where the impact was felt."

However, on appeal the Appellate Division, 1st Department on May 7, 2009, declined to apply Shah’s “impact rule” and instead chose to focus on whether the discriminatory action took place within New York, which was the reasoning applied in the federal district court in Rylott-Rooney v. Alitalia-Linee Aeree Italiane-Socita Per Azioni, 549 F.Supp.2d 549 (S.D.N.Y. 2008). The First Department held that “Shah could not be applied so broadly as to preclude a discrimination action where the allegations support the assertion that the act of discrimination, the discriminatory decision, was made in this state.” The court further declared that “application of logic and common sense alone would dictate that if an employer located in New York made discriminatory hiring and firing decisions, those decisions would be properly viewed as discriminatory acts occurring within the boundaries of New York.”

The New York City Human Rights law which protects employees against all forms of discrimination, also has one of the broadest anti-retaliation provisions of any law in the country.

In order to have a claim of retaliation under the New York City Human Rights Law, an employee must complain about race, gender, age, sex, national origin, pregnancy or disability discrimination. The employee need not prove that the discrimination actually existed, merely that the employee had a good faith, reasonable belief that they were being discriminated against on one of those bases.

Under Title VII of the Civil Rights act of 1964, the federal anti-discrimination and retaliation law, an employer to be found liable for retaliation must take adverse employment action against an employee. Such adverse employment actions include termination, demotion, withholding compensation and others.

Under the New York City Human Rights Law, the conduct of the employer does not need to be adverse employment action, merely conduct that is reasonably likely to deter an employee from complaining of discrimination. This provides much broader protection.

A group of employees have initiated a lawsuit against Dell Inc. on claims of age discrimination and sex discrimination. The suit was initiated in the U.S. District Court for the Northern District of California, and was later moved to the Western District of Texas. According to a recent article on ComputerWorld.com, the plaintiffs, who include four former human resources executives, allege that Dell discriminated against women and workers over 40 years of age in numerous areas, including pay, promotion and layoffs. The lawsuit claims that Dell’s executive management team included 14 males and no females, and that women were given lower level positions with less pay than men. Dell has denied the claims and says that the layoffs were consistent with the company’s business needs, and not aimed at particular employees. The company also argues that any losses or damages that were suffered by the plaintiffs were caused by their own actions or conduct. The plaintiffs are currently seeking class-action status, while Dell has moved to dismiss the suit.

Age discrimination complaints were up 30% in the 2008 fiscal year compared to 2007 according to statistics compiled by the Equal Employment Opportunity Commission (EEOC). The vast majority of age discrimination complaints involved layoffs. Evaluating just how pervasive age discrimination is in the current job market is difficult, although older workers obviously believe it is rampant. Sixty percent of workers 45 to 75 said they had seen or experienced age bias according to a 2007 AARP survey.

According to a recent article in The New York Times, as a result of our current economic crisis, more older workers are trying to either stay in the workforce or return to it, but with great difficulty. Older workers must battle stereotypes about their energy and adaptability, as well as the reality that their healthcare costs are greater. Interviews conducted with older, out-of-work executives reveal heart breaking stories regarding their efforts to secure new employment after being laid off. Many have considered taking positions that are far below their experience level in order to remain in the workforce.

A recent New York Times article noted that millions of Americans have delayed their retirement due to plummeting 401(k)s, lack of confidence in Social Security benefits and increasing health care costs. Due to the increase of older workers in the labor market, younger workers are facing a scarcity in available jobs in certain industries.

According to recent reports from the Bureau of Labor Statistics, the number of employed workers ages 16 to 24 has fallen by two million over the past two years. Yet, the number of working Americans age 65 and over has risen by over 700,000 over the same time span. In a decade perspective, the number of working Americans age 65 and over has risen 11% from 10 years ago. The number of working Americans age 16-24 has fallen 10% from a decade ago. The employed number for Americans in the age range of 25-29 has fallen 7% from a decade ago.

Recent college graduates are finding it hard to break into certain industries. Younger males with little or no college education have felt the harshest employment impact because they often are the first to be laid off in an economic downturn. People in this category found jobs easily when the economy was healthy, but they now face the greatest competition from older, more experienced workers. At the same time, many older workers say they suffer from age discrimination in certain industries as some employers tend to favor more youthful and energetic employees. “In a bad labor market, different groups perceive that they’re being discriminated against when the real problem is they’re being mistreated by the overall economy,” said Teresa Ghilarducci, an economics professor at the New School of Social Research and author of “When I’m Sixty-Four.”

According to Bloomberg.com, The United States Equal Employment Opportunity Commission (EEOC) announced its total claims filed for the year ending September 3, 2008. There were a total of 95,402 claims filed. This includes claims for employment discrimination and retaliation in the workplace.

This amount represents an increase of 15% over the amount filed in 2007. Interestingly enough, over 25% of the claims filed were for age discrimination. As the population ages, in conjunction with employers feeling pressure to reduce their workforce, employers must be ever-vigilant in ensuring that all employment decisions are made in a non-discriminatory manner. Where a discriminatory bias enters the process, a plaintiff may then work to assert their protected human rights by making a complaint of employment discrimination.

Age discrimination is a problem that is widely acknowledged to be spreading throughout workplaces all over the country. Its effects can be felt by everyone from bankers to doctors to lawyers to business executives and it also has reared its ugly head in the realm of professional sports.

Former Los Angeles Clippers General Manager, Elgin Baylor, has sued the NBA franchise, the league and the team owner, alleging that he was subject to age discrimination and race discrimination. Baylor, a hall of fame player, had been with the Clippers organization for 22 years and alleges in his lawsuit that he was “grossly underpaid during his tenure with the Clippers.”

Age discrimination has the ability to impact all industries and individuals and, as indicated by recent statistics put out by the EEOC, claims of age discrimination are on the rise. It therefore falls to the lawyers who represent the victims of this despicable form of discrimination to act as “private attorney generals” and police the workplace to eradicate age discrimination once and for all.

It is abundantly clear that the intensification of job cuts, which has broadened during the past year, has devastated the workplace. One of the direct results of this fact is that lawsuits by employees who have been terminated have markedly increased. With the increase in the number of terminations, employees have carefully considered the circumstances for their termination and a good number have alleged that their terminations were unjustified under the law.

It is evident that the workforce has accepted the fact that, in most cases, employment is “at will.” They recognize that the employer can terminate them for a poor reason, in fact, for no reason at all, other than a reason which would violate their human rights. However, some terminated employees have claimed that when there is a reduction in force, those who should not have been included in the reduction in force find that they are terminated nevertheless. Therefore, they find it difficult to accept the fact that they were properly named among those who must leave. Our experience confirms that, oftentimes, there is an inordinate amount of “older” employees who have been asked to leave and in some of those cases, the “older” terminated party believes that his/her termination was not truly consistent with the purpose of the reduction in force. When that occurs, they frequently question the selection process.

In many instances, we have been faced with statistics provided to us by the terminated employee which, on their face, seem to suggest that it is appropriate to question how the selection process was actually enforced. Clients recognize that the employer has a right to embark upon a reduction in force when business reasons dictate, as painful as that may be. But frequently, when they review the ages of those that are retained and those that are selected to leave, they sometimes find that there is an unfair percentage of “older” employees who have been terminated. It would be appropriate, therefore, in some cases, for employees who have been selected for departure to review carefully the statistics that are provided to the terminated employees. By so doing, they may then be in a reasonable position to question the propriety of the process that was used in establishing who “goes” and who “stays.”

According to a recent article published in The New York Times, the rise in layoffs has also coincided with new laws that give employees more legal arguments to draw from in initiating a lawsuit. There also seems to be a sense that President Barack Obama will be more proactive in enforcing employment laws than President Bush’s administration was. He recently signed legislation that overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc.

Both class-action suits and individual claims are being filed with increasing regularity. Terminated employees of Ethan Allen and Dell have filed age discrimination suits, and a veteran has sued Lockheed Martin, alleging that they discriminated against veterans. Some employees are also investigating whether their former employer violated the Worker Adjustment and Retraining Act, or the WARN Act, which requires 60 days notice before laying off employees. WARN Act violation lawsuits have been filed against Lehman Brothers, an airline company and two law firms. New York has similar legislation that provides that companies must give 90 days notice. Lawsuits alleging WARN Act violations do not require that the government investigate a claim first, like many employment discrimination claims require, which could lead to a rapid escalation of WARN Act suits.

A New York Times article published on January 4, 2009 discussed the possibility that President-elect Barack Obama may move quickly to revive legislation that would negate the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc. 550U.S. 618, 127 S.C. 2162 (2007), in which the Supreme Court ruled that discriminatory acts triggering the time limits for filing an Equal Employment Opportunity Commission charge could only be unique discriminatory pay decisions, and not later pay decisions perpetuating the earlier discriminatory acts. In this case, Lilly M. Ledbetter argued that she had been discriminated against on the basis of her gender when she was given discriminatory performance evaluations that resulted in lower pay than her male co-workers, and that each discriminatory paycheck she received thereafter was a discrete violation of the law. The Court, however, ruled that “A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from past discrimination.” (Ledbetter at 2164).

Justice Ginsberg was joined by three other dissenting judges who argued that the Court’s decision reflected a “cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.” (Ledbetter at 2188). The bill that Mr. Obama co-sponsored would have remedied any such interpretation by stipulating that each time a person receives a paycheck resulting from a decision motivated by a discriminatory bias (e.g., gender), that is a violation under the civil rights laws. Although the bill passed in the House, it was just short of enough supporting votes in the Senate. Mr. Obama and the Democratic supporters of the bill are confident that the bill would now pass in the Senate, and thus, victims of employment discrimination may be able to revive claims that otherwise would have been considered untimely. Schwartz & Perry LLP views this as a positive change and much more in line with the broad remedial purposes of civil rights laws aimed at eliminating employment discrimination.

In Sprint v. Mendelsohn, 466 F. 3d 1223 (10th Cir. 2006), the United States Supreme Court addressed the admissibility of what has commonly been referred to as “me too” evidence, meaning evidence that other employees not supervised by the plaintiff’s manager were also victimized by the same type of employment discrimination. In the Sprint case, the plaintiff was terminated as part of a reduction in force. However, the plaintiff believed that her particular termination was not business related, but rather the result of age discrimination. To support her claim, the plaintiff sought to introduce evidence from five former Sprint employees who claimed that their managers discriminated against them because of their age. None of the five former employees worked in the same department as the plaintiff and none of them worked under the plaintiff’s supervisor. Sprint argued, among other things, that the evidence was not relevant to whether the plaintiff was discriminated against and the trial court agreed, prohibiting the plaintiff from adducing evidence from employees not similarly situated to the plaintiff. On appeal, the Tenth Circuit reversed the trial court’s ruling, holding that the trial court abused its discretion by implementing a per se rule precluding such “me too” evidence. The Tenth Circuit reviewed the plaintiff’s proposed “me too” evidence and found that it was relevant. As a result, the Tenth Circuit reversed the decision and ordered a new trial with instructions to admit the challenged testimony.

Sprint appealed to the U.S. Supreme Court which, affirming the Tenth Circuit’s decision, stated that “[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because it was not entirely clear that the trial court was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the “question [of] whether evidence of discrimination by other supervisors is relevant in an individual Age Discrimination in Employment Act case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”

Now, a fact-based inquiry must be made on a case-by-case basis regarding “me too” evidence so that a victim of employment discrimination will not be subjected to an absolute rule excluding such evidence as irrelevant. We at Schwartz & Perry LLP believe that the Sprint case represents a victory for employment discrimination plaintiffs who often find their claims difficult to prove because of the lack of direct evidence of employment discrimination.

Those of us who practice in the field of employment law have been faced with the realization that, although our work-life expectancy has increased, the age at which we are considered expendable and no longer capable of making a meaningful contribution has been systematically reduced. The inevitable result is that older workers are “forced out” of their positions, well before their work-life expectancy is achieved.

Years ago it was not unusual for people to work until they, themselves, felt they could no longer effectively perform. Now, performance often plays no role when an employee is asked to leave the workplace. Instead, age becomes the determining factor. Regrettably, some companies have actually set ages at which employees face mandatory retirement, although many employees looked forward to remaining at their jobs for a longer period. Although they are physically and emotionally capable of a longer work-life, conditions in the workplace frequently force employees, when they reach their 50s, out of positions they are still fully capable of fulfilling and mastering. It makes no sense, given the experience and energy that goes to waste when this occurs.

We fully recognize, certainly at this time, the strong burdens placed upon management to reduce costs. It is a fact that workers of age frequently earn higher compensation than younger employees. Dispensing with older workers, with higher salaries, rather than younger workers, might appear to represent greater savings for the employer. Therefore, this can be an enticing reason for management to force older workers out if the employer is faced with a need to cut costs. However, that can be a hollow choice, given the fact that we often find the younger replacements frequently in need of more supervision, a period of adjustment and other unknowable pitfalls that arise when experienced workers are removed from their positions. There could well be greater employment costs and frequently a failure to produce the expected and required results. We believe that is why the operative laws against age discrimination provide that “age need not be the only reason for the termination, but only one of the reasons.” Ostrowski v. Atlantic Mutual Insurance, 968 F.2d 171, 180 (2d Cir. 1992).

We recognize that “employment is at will.” We must also recognize, however, that termination that has a discriminatory basis clearly trumps the concept of employment at will. And so the battle begins. Was the termination based upon a reason that has been judicially deemed appropriate, or did age play some role in the termination?

In other areas of employment discrimination, it is inconceivable that we could find any factors that could reasonably justify, or explain away, an act of employment discrimination. No one can reasonably explain, or justify, how a man could do a job, but not a woman. Or how someone in a minority group could not do the job of a non-minority employee. But with respect to age discrimination, we find that there are those in the workplace who argue, despite the laws that provide otherwise, that the employer should be permitted to consider age in its determination as to who should be hired and who should be fired. They argue that the workplace belongs to the employer and that age should not be considered a protected class. Some may even assert that market forces will protect older people and they do not require the protection of age discrimination laws. We say otherwise.

We believe age discrimination is an increasing epidemic. It has escalated to the point that age discrimination now has a pervasive effect in the workplace. This tidal wave of age discrimination must be addressed in vigorous and meaningful fashion.

A recent article in The New York Law Journal discussed that sites such as Facebook and MySpace could potentially lead to employment discrimination cases.

These various social networking sites are chock full of any type of information an employer may use to make a discriminatory employment decision. These sites can easily reveal a person's age, gender, race, religion and sexual orientation. Even photographs of an individual consuming alcohol while not at work, under New York Labor Law 201-d, cannot be used by an employer to affect an employment decision.

These new issues, due to the prevalence of the Internet and other technological innovations, further demonstrate how relevant and ever-evolving the field of employment discrimination law is.

A mandatory retirement age is an artificial limit placed on experienced employees in the workplace and amounts to age discrimination. Congress, in passing the Age Discrimination in Employment Act, indicated that its intention, in part, was to prevent an employer from requiring or permiting involuntary retirement of an employee within the protected age group.

Many organizations, including law firms have mandatory retirement ages for employees, but what these organizations do not realize is that they are harming themselves by forcing out the most experienced individuals for no reason other than their age. The decision about when to retire should most certainly not be made for you by your employer.

Thankfully, advances in modern medicine have enabled us to remain active longer and, therefore, remain part of the workforce. The laws against age discrimination support this as well.

The 2008 presidential election is extraordinary in many respects. It marks the first time that an African-American, overcoming racial discrimination, has secured the nomination of a major party. It also has had a woman, in spite of an unfair gender bias, advance far beyond anyone’s initial predictions. In addition to these two stereotypes, The New York Sun recently reported that another issue has permeated the race: age discrimination.

The Republican contender, John McCain, and Barack Obama, the presumptive Democratic nominee, have begun to exchange barbs over McCain’s age. The McCain camp alludes to the fact that Obama may be too young, calling him inexperienced. In return, the Obama campaign has suggested that Mr. McCain may be “confused,” or “has lost his bearings.”

Schwartz & Perry LLP's Managing Partner, Murray Schwartz, commented on the issue of age discrimination in The New York Sun article stating that “Age discrimination is an insidious, egregious disease. Age should not be a factor in any employment decision that’s made. Not in hiring. Not in firing.”

Mr. Schwartz, while refraining from making any political observations said, “If someone is going to be ignored as a viable candidate because of age, besides it violating the law, it would be shameful. Experience is a major component of everything.”

In a recent article, The New York Times reported that a U.S. Supreme Court ruling has made it easier for older workers to argue that they are being discriminated against based on their age.

The case, which was decided in a 7-1 ruling, concerned 28 workers from a New York Federal research laboratory. When the Federal government required that the laboratory reduce its workforce, the contractor who ran the lab fired 31 employees, all but one of whom were over 40 years of age.

The plaintiff contended that the language used in the Age Discrimination in Employment Act of 1967 put the burden of an age discrimination suit on the employer rather than on the employee. Justice David H. Souter agreed with the argument, asserting that the employer must provide “reasonable factors other than age” to be protected from liability. This decision is a significant step in protecting older employees from being discriminated against based on their age.

In a recent article in The National Law Journal, the results of a recent survey revealed differences in the amount of post-law school debt among men and women and those of different races and ethnicities. The survey put forth data stating that women generally are in greater debt than men and that minorities are likely to have larger debt than Caucasian law graduates. One can come to their own individual conclusions regarding this data, but perhaps disparities in hiring after law school among men, women and minorities may force some students to carry law school debt for a longer period of time. It is possible that women and minorities who attain gainful employment shortly after graduating still suffer the effects of a "glass ceiling" in the salaries they are able to earn.

The U.S. Supreme Court will address the significant question of whether an employer in an age discrimination suit has the burden of proving that reasonable factors exist that might explain the disparate impact that a business decision has on a group of older employees, or if the burden rests with the employees.

In a case brought by two dozen workers at Knolls Atomic Power Laboratory in upstate New York, 31 employees were terminated using a set of guidelines to evaluate the workers’ skills as well as their amenability to retraining. Thirty of the 31 terminated employees were over the age of 40, the age at which the protections of the Age Discrimination in Employment Act (ADEA) apply. The employees won after a jury trial, but the judgment was overturned by the U.S. Court of Appeals for the Second Circuit.

The Age Discrimination in Employment Act is the law under which the suit was initially brought and it references the reasonable factor test but does not indicate where the burden rests. It would make sense that if the employer wanted to use the reasonable factor concept as a shield, the burden should rightfully rest with them.

Recently, it has been sad to witness the frequency of reductions in force which seem to be increasing in intensity. We do wish, however, to point out that there have been occasions, where the “reduction” although identified as such, was, in some part, motivated by age discrimination.

It becomes necessary, therefore, that when a potential client discusses termination as part of a reduction in force, we inquire further to determine whether he/she was identified in the reduction in a fair and appropriate fashion. We have, on occasion, identified instances in which, during an appropriate and acceptable “reduction,” we have found that employment discrimination existed. Reductions in force should not be used to mask instances of employment discrimination.

Recently, in Ferguson v. Lander, a Federal Magistrate Judge concluded that a factory controller was, in part, terminated because of age discrimination. Although the company argued that the termination was the result of a reduction in force, the fact was that his termination was based, at least in part on his age.

Although we are aware that the law clearly permits an employer to engage in a reduction in force. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under the Age Discrimination in Employment Act.” This case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases.

In order to start a lawsuit under many Federal laws, including Title VII, a plaintiff must first secure the “right to sue” from the U.S. Equal Employment Opportunity Commission (EEOC). In order to obtain a “right to sue” from the EEOC, a plaintiff must first file a charge with the EEOC in timely fashion.

Against that backdrop, the U.S. Supreme Court just clarified what constitutes a “charge” with the EEOC in its recent decision in Federal Express Corp. v. Holowekci. In Holowecki, the plaintiff sought to start a claim by filling out an “Intake Questionnaire” with the EEOC, under the Age Discrimination in Employment Act, and subsequently filed a lawsuit. The defendant sought to dismiss the plaintiff's lawsuit, claiming that the plaintiff had not filed a “charge” with the EEOC.

The U.S. Supreme Court, adopting the analysis of the EEOC, held that a person files a “charge” with the EEOC when the filing, taken as a whole, is a “request” for the agency to take action on the individual’s behalf. Rather than considering the form that is filled out, as the defendant argued, the proper inquiry should be whether the request is for the EEOC to do something, such as investigate a claim, as opposed to a simple request for information from the agency.

The U.S. Supreme Court, in Holowecki, rejected the defendant’s argument that the plaintiff's submission was insufficient because they did not file a charge form and because the EEOC did not process the Intake Questionnaire as a charge. The Court, however, held that the plaintiff's submission constituted a charge because it was accompanied by a six-page affidavit asking the EEOC to “please force Federal Express to end their age discrimination plan so we can finish our careers absent the unfairness and hostile environment...” This simple plea for help was enough to transform the submission from a simple request for information into a charge that served as the basis for a lawsuit. The Supreme Court looked at substance rather than form alone. The Court specifically noted that the EEOC advocated this exact position, and that it reached this holding based on the EEOC’s interpretation of its rules.

The U.S. Supreme Court has just handed down a decision in Sprint/United Management Co. v. Mendelsohn that will significantly impact the manner in which a plaintiff may prove a claim of employment discrimination.

In Mendelsohn, the issue was whether the plaintiff could prove his claim of age discrimination by submitting the testimony of other older employees who were fired by different managers than the ones that had fired the plaintiff. The Second Circuit, the Federal appeals court in New York, held that the trial court had improperly issued a per se rule against such evidence.

The Supreme Court determined that it was improper for the Second Circuit to reverse the district court’s order. According to the Supreme Court, “a district court is virtually always in the better position to assess the admissibility of the evidence in the context of the particular case before it.”

The Supreme Court also ruled that there is no per se rule regarding the admissibility of discrimination by other supervisors. The Court held that admissibility of such evidence should be based on many factors, “including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” a decision best left to the lower court judge.

The impact of Mendelsohn, therefore, appears to be a confirmation of the discretion and authority of the lower courts, placing boundaries on the appellate courts regarding factual determinations.

Labor and employment law issues, particularly in the context of the protection of federal anti-discrimination laws, are one of the significant subjects to be addressed on the Supreme Court’s docket during this current term. The Court will hear arguments from both employees and employers on issues ranging from age discrimination (Age Discrimination in Employment Act) and disability discrimination (Americans with Disabilities Act) protection to the U.S. Equal Employment Opportunity Commission (EEOC) filing issues to a case relating to retaliation under the Federal civil rights statutes. This was originally discussed in a recent Outside Counsel column in The New York Law Journal which referred to the Supreme Court’s employment law docket this term.

Among some of cases that the Court will decide will be whether the Age Discrimination in Employment Act’s protections against retaliation by one’s employer can be extended to Federal employees. Another case poses the question of whether the Age Discrimination in Employment Act’s requirement of filing a “charge” of discrimination is met by the filing by an employee with the EEOC of an intake questionnaire and accompanying affidavit. The Federal Civil Rights statutes will also be an area of focus for the Court. The statute at issue, 42 U.S.C. § 1981, does not contain the words “retaliation” or “retaliatory,” yet the question presented is whether a cause of action for race retaliation can be brought under the statute.

It is evident that the U.S. Supreme Court will be spending a great deal of its time grappling with the complex issues of labor and employment law. The employment law field is ever expanding and presents some of the most cutting-edge and developing legal issues of the day.

Our courts have consistently held that discrimination in the workplace is rarely done openly. In fact, it is most often done secretly, behind closed doors. Rarely, therefore, will there ever be direct evidence as may be required, for example, in a criminal case. In a criminal case we understand the burden of proof may have to be established “beyond a shadow of a doubt.” However, with all types of employment discrimination, whether it is because of age, a disability, gender, race, sexual orientation, a pregnancy, or any other protected reason, the burden of proof is not required to be satisfied “beyond a shadow of a doubt.” It may be established by circumstantial evidence.

In Ash v. Tyson Foods, 546 U.S. 454 (2006), the U.S. Supreme Court held that the context of discriminatory remarks should be considered. The Court stated that “the speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.”

According to a recent article in The New York Times, the U.S. Supreme Court has agreed to hear two new employment discrimination cases this term. One involves age discrimination and the other retaliation against employees for complaining of discrimination. This adds to the several others that the Court had already agreed to hear. Employment law is very well-represented considering that the Court will only hear fewer than 70 cases this term.

In the age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, 30 of whom were over 40 years of age, which places them in the protected class for age discrimination. The employer claimed this decision was made for a legitimate business reason. The Court will decide the question of when an employer claims that employment decisions were based on “reasonable business justification,” whether it is up to the employer to prove that this reason or reasons existed or if it is the burden of the employee to prove that such reason or reasons did not exist. This issue is one that could have a significant impact on employment discrimination law for many years to come.

The workplace retaliation case, Crawford v. Metropolitan Government of Nashville, involves an employee, Vicky Crawford, who did not make any complaints to management herself, but rather when other employees complained, there was an investigation of the complaints, and at that point Crawford was questioned and discussed what she believed to be sexual harassment. The end result was that the supervisor who was the subject of the complaints was not disciplined, but Crawford and several other women who complied with the investigation were terminated. The Court is hearing this case to decide whether protection from retaliation is only available to the employee who initiates a complaint or files a charge with the appropriate government agency or if those who speak in internal investigations can also receive the same protection from retaliation.

It is readily apparent that employment law, specifically employment discrimination, is one of the most active and evolving areas of the law. It is important that employees are aware of the rights and protections they have under the law.

Age discrimination is a creeping disease which has reached epidemic proportions. Employers, with increasing intensity, are attempting to remove older employees from their work force and the excuses they offer for the termination of these older employees are, in many instances, cruel.

The law does not require a "smoking gun" to confirm age discrimination in the workplace. The burden an employee has in order to establish age discrimination, as well as any other form of employment discrimination, is not as stringent as the burden of proof required in other types of cases. Our courts have frequently held that employment discrimination can be established with circumstantial evidence. Circumstantial evidence is less than direct evidence, which includes witnesses or written proof. Circumstantial evidence involves making reasonable inferences based on the proof available.

There will never be a memorandum written by management saying, “let’s get rid of the older people.” However, there will likely be ample circumstantial evidence. One example would be if a company were to fire 12 people over the age of 40 and replace them with 12 people younger than 40 years of age. It is at that point one might make a reasonable inference, based on the circumstantial proof available, that this particular company had a hostility toward older employees and may be engaging in the practice of age discrimination. In the field of employment law, circumstantial evidence can be very powerful in protecting the rights of employees in the workplace.

On December 3, 2007 the U.S. Supreme Court heard oral argument on an age discrimination case, Sprint/United Management Company v. Mendelsohn, No. 06-1221 - the so-called “Me Too” case. The central issue in the case is whether a plaintiff may properly introduce testimonial evidence of other former employees to prove discriminatory intent of an employer, notwithstanding the fact that these other employees worked under different supervisors than the plaintiff.

In Sprint/United, Ellen Mendelsohn, who was discharged at age 51 by Sprint, sought to prove that she was terminated on account of her age in violation of the Federal Age Discrimination in Employment Act during a company-wide reduction in force (RIF). Mendelsohn attempted to support her allegations by introducing the testimony of five other former employees around the same age. Sprint moved to exclude the evidence, arguing that any reference to alleged age discrimination by any other supervisor other than Mendelsohn’s was irrelevant to the issue of whether Mendelsohn’s termination was motivated by her age. The U.S. District Court for the District of Kansas granted Sprint’s motion to exclude the testimony and the jury later returned a verdict for Sprint. However, on appeal, the U.S. Court of Appeals for the Tenth Circuit found that the lower court erred in excluding the testimony of the employees working under different supervisors. Sprint appealed that decision, and the matter is now before the Supreme Court.

The crux of Sprint's argument before the Supreme Court was that such testimony from other employees should be excluded under the Federal rules of evidence. “An employment decision is made by the person who made it...,” Sprint maintained. “If some other person harbors bias, that’s unfortunate -but it’s not probative of claims by a plaintiff who is not affected by it.” Justice David Souter at one point seemed to agree with Sprint’s argument, and said that such testimonial evidence was very close to being “substantially misleading or prejudicial.”

In contrast, the Court of Appeals had made the following observation: “This case...is not about individual conduct but about a company-wide policy of which all Sprint’s supervisors were allegedly aware.” As such, if the supervisor did not make the allegedly discriminatory decision in a vacuum, and allegedly made it as part of a larger, odious scheme handed down from upper management, shouldn't the jury be permitted to hear testimony that involved other supervisors’ discriminatory conduct that arguably originates from on high? Such evidence would clearly be probative, even vital, in this scenario.

As the appellate court pointed out, applying a limited "same supervisor" rule in the context of a company-wide reduction in force would in many cases make it difficult, if not impossible, for a plaintiff to prove a case of employment discrimination based on circumstantial evidence. To apply the same supervisor rule in these types of cases would, as the appellate court insightfully pointed out, “create an unwanted disparity between those cases where the plaintiff is fortunate enough to have other RIF’d employees in the protected class working for her supervisor, and those cases where the plaintiff is not so fortunate.” It will be interesting to see what the Supreme Court decides.