Showing posts with label age discrimination. Show all posts
Showing posts with label age discrimination. Show all posts

Wednesday, May 1, 2024

Does a prank involving adult diapers and a wheelchair = age discrimination? It depends.

An attorney celebrates a paralegal's 50th birthday by decorating her office party with a wheelchair, fake pill bottles, and adult diapers. (Get it? She's "old.")

The paralegal does not appreciate the joke, and lets the lawyer know as much. In response, the lawyer simply moves the decorations adjacent to the paralegal's workstation. Around the same time, the lawyer also starts asking when the paralegal intends to retire.

Tuesday, February 13, 2024

Ending the “ism” of ageism

"Ageism is really one of the last acceptable 'isms' that society tolerates," says AARP senior advisor Heather Tinsley-Fix.

The numbers back her up. According to a recent AARP report, two-thirds of adults over 50 believe older workers face age discrimination in the workplace, and 90% of that group believe ageism is commonplace.

How do we best combat ageism and age discrimination in our workplaces? Here are 6 suggestions.

Tuesday, April 11, 2023

Do you know what recruiters are telling candidates on your behalf?

“The company is looking for someone more junior to fill this position.”

That’s what John Larkin claims an Exact Sciences recruiting consultant told him after he was not selected for a professional medical sales representative position. It’s also why the EEOC is now suing Exact Sciences for age discrimination.

Thursday, October 20, 2022

Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense

"I wouldn't think with your condition and—your medical condition and your age that you would want to teach."

"I think your disability is slowing all this down.… You're really too old to be doing this."

"You need to go ahead and retire.… I'm concerned about this disability you have, your condition with your liver."

"Just how disabled are you?"

"I'm tired of disabilities and I'm tired of medical problems."

"I'm not running a rehabilitation clinic."

"If you're not at 100 percent, I can't use you. You've got to be 100 percent for this job."
These are just some of the comments Robert Bledsoe — a 58-year-old nuclear-plant operator who returned to work following a liver transplant — claims his supervisor made to him in the months prior to his removal from a teaching position. The Tennessee Valley Authority, on the other hand, claimed that it demoted Bledsoe based on ethical concerns after his son was accepted to the training program he taught.

Monday, November 22, 2021

It’s a bad idea — and age discrimination — to badger an older employee about retirement

A new manager takes away a pet project from a long-term 60-year-old employee, repeatedly asks him when he's "going to retire," calls him "Uncle," and criticizes his "old skills." Those are the basic facts that caused the 6th Circuit to reverse a grant of summary judgment to the employer in Sloat v. Hewlett-Packard Enterprise Co.

Thursday, September 10, 2020

Coronavirus Update 9-10-2020: The coming wave of Covid-related age discrimination lawsuits

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

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

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

Tuesday, January 21, 2020

You can't prove age discrimination if you're replaced by someone older

Crescent Metal Products fired Donald Tschappatt for a variety of instances of poor work performance. He made "negative comments" about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

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

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

Thursday, January 16, 2020

“OK Boomer” makes its Supreme Court debut

Yesterday, the Supreme Court heard oral argument in Babb v. Wilkie, which will decide whether the “but-for” causation standard of proof applicable to private-sector employees in age discrimination claims under the ADEA also applies to federal-sector agency employees.

Even for this employment-law geek, not the most scintillating of cases.

That is, until Chief Justice Roberts (a Boomer) posed this question to the plaintiff’s counsel during oral argument:

Tuesday, August 20, 2019

New study reveals that age discrimination remains a worsening problem for employers

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

Thursday, November 29, 2018

I can name that lawsuit in one note

Demetria Kalodimos, age 58, worked as an anchor for Nashville's WSMV for 33 years. After the station failed to renew her contract, she sued for age and gender discrimination.

Monday, November 5, 2018

When salary is a proxy for age discrimination

Jim Boylan, recently fired as an assistant coach with the Cleveland Cavaliers, has filed an age discrimination lawsuit against his former employer. According his lawsuit [pdf], then-head coach Ty Lue told him that team owner Dan Gilbert "wants to go younger" in his position and "find somebody who's a grinder and younger."

On its face, those statements certainly seem like direct evidence of age discrimination.

But are they?

Thursday, June 28, 2018

As our workforce ages, age discrimination is only going to worsen

Happy Golden Birthday, Age Discrimination in Employment Act.

On June 13, 2018, the ADEA turned 50.

To commemorate this milestone, the EEOC just released a report entitled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA).

Wednesday, March 21, 2018

How can you transition older workers if you can’t force them to retire?

A Michigan oral surgery practice has agreed to pay $47,000 to settle an age discrimination lawsuit filed by the EEOC. The agency alleged that it violated the ADEA by maintaining a policy that required employees to retire at at 65. The lawsuit stemmed from the firing of an employee four days after her 65th birthday.

According to Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office, “December 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

He’s absolutely correct.

Wednesday, June 7, 2017

Next up on the EEOC’s radar: age discrimination

This year, the Age Discrimination in Employment Act turns 50. Which means the law itself has been protected from age discrimination for a decade (rim shot).

To mark the law’s golden anniversary, the EEOC next week will hold a public meeting, “The ADEA @ 50 - More Relevant Than Ever.” According to the EEOC, “The meeting will explore the state of age discrimination in America today and the challenges it poses for the future.”

Monday, October 24, 2016

Lessons from a job interview

Last week, Steven Colbert conducted a mock job interview for President Obama. During the course of the interview, he asked the President questions that referred both to his age and the national origin of his birth.


What lessons can employers learn from these few moments of late-night frivolity?

Monday, September 12, 2016

Forced retirement is an age discrimination no-no

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

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

Thursday, December 10, 2015

#ElderlyChristmasSongs and age discrimination

#ElderlyChristmasSongs Feliz Off My Lawn

2 Days of Christmas Because That s All I Can Remember #ElderlyChristmasSongs

Yesterday, #ElderlyChristmasSongs trended on Twitter. Yes, it’s meant to be a joke, and, yes, some were even funny. Now here’s the part where I get to play Employment Law Scrooge.

Wednesday, May 6, 2015

Is hiring for “digital natives” age discrimination?

Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”

“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”

  • “This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global

  • “I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney

Let me offer a counter-argument. I’m 42 years old, more tech savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.

Wednesday, February 18, 2015

Target (inadvertently) teaches the importance of avoiding age-based stereotypes

I do a lot of speaking. One speech that I’ve been giving over the past couple of years is entitled, “X+Y+Z = A Generational Mess for Your Workplace.” I teach how employers can best manage the diverse needs and abilities of four different generations of employees. I discuss some broad-based generalizations about Traditionalists (age 70+), Baby Boomers (50-69), Gen X (35-49), and Gen Y (under 35). I always finish by discussing the very real risk of age discrimination if you treat these generalizations as gospel, and do not treat each employee, of age any, as an individual, with individual talents and abilities.

Target saw the need to offer the same type of training to its managers, but it left off the part about age discrimination. Gawker (h/t Business Management Daily) published Target’s training materials, entitled, Managing Generational Differences,” which, among other things, describe its oldest workers as “slow to adapt to change,” “rarely question[ing] authority” and see[ing] technology as “complex and challenging.”

When you are sued for discrimination, your training materials are fair game in litigation. While you write them to aid your employees, you must do so with (at least) one eye on the jury that will read them during trial. You do not want to have your manager explain to a jury, in an age discrimination case, if he thought the plaintiff was “slow to adapt to change” when he made the termination decision.

Wednesday, October 1, 2014

EEOC wastes its scarce resources by filing lawsuits without claimants

The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.

According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation….  In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”

According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”

Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency.