Thursday, November 15, 2007

Age discrimination lawsuits and plaintiffs' victories continue to rise

When I started this blog six months ago, one of the first posts was on the proliferation of large jury verdicts in age discrimination cases. (See Age discrimination lawsuits continue to rise)

The front page of today's Cleveland Plain Dealer picks up this theme that more age discrimination cases are going to trial, and more are ending in big verdicts for employees. The article cites last year's $16 million dollar verdict obtained by Tommy Morgan against New York Life, in addition to other multi-million dollar verdicts handed down local courts in other age discrimination cases. A former colleague of mine, Marty Wymer, correctly points out, "Everyone on the jury is either over 40 or a close family member is over 40," and that plaintiffs benefit from these jury demographics. Tommy Morgan highlights the theme that plaintiffs use to drive many of these case to big verdicts: "They were making room for younger people."

The lessons for employers to take from these large verdicts haven't changed since I first wrote on this issue:

  1. Well documented, legitimate, reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Indeed, under Ohio law, the stakes in these cases are higher than ever, as unlike its federal counterparts, Ohio's employment discrimination statute contains no caps on damages.
  2. Judges and juries continue to punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive.
  3. All legal issues aside, the golden rule is the best risk management practice -- employers should treat employees as they would want to be treated if in their shoes. Juries are comprised of many more employees than employers, and if those jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to punish the employer, and the dollars needed to resolve the case will be much lower, if needed at all.