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.
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.
Happy Golden Birthday, Age Discrimination in Employment Act.
 |
| Image credit: slate.com |
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.
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 Fortune.com, 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.
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.
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.
Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.
In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:
In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.
In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.
This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.
So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.
Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?
Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”
[A]n employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….
We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”
There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):
Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.
It’s no secret that Ohio’s age discrimination statute is a hot mess. The statute has four different ways a plaintiff can file an age claim against an employer, each with a different statute of limitations and available remedies. What’s more, the statute requires that the plaintiff elect which one of the four specific statutory provisions the claim is asserted. Filing under one provision precludes a plaintiff from asserting a claim under any of the other three. This election can have a significant impact on the litigation, because it will dictate the remedies a plaintiff can seek.
If this scheme not complicated enough, federal law also requires that a plaintiff file an age discrimination charge with the EEOC as a prerequisite to filing a lawsuit alleging a violation of the ADEA. Because Ohio is a deferral state, any charges filed with the EEOC are automatically deemed dual-filed with the OCRC.
Not all Ohio state-law age discrimination claims, however, require exhaustion with the civil rights agency. In fact, R.C. 4112.99, which provides the most expansive remedies, has no exhaustion requirement at all. What happens, however, if a plaintiff files an age discrimination charge with the EEOC? Does that mean that the dual filing with the OCRC asks an election by the plaintiff to pursue an administrative claim (with limited remedies) instead of a civil lawsuit with more expansive remedies?
In Flint v. Mercy Health Partners of Southwest Ohio (S.D. Ohio 4/16/13), the district court concluded that filing first with the EEOC does not serve as an election of administrative remedies under Ohio’s age discrimination statutes:
This Court concludes that the Ohio Supreme Court would likely rule that filing a charge of age discrimination with the EEOC does not comprise an election of remedies…. Therefore, the Court holds that Plaintiffs’ pro se filing of an EEOC charge was not an election of remedies under the Ohio statute. This result acknowledges the complementary nature of federal and state employment discrimination procedures and disarms the “minefield” Ohio’s statutory scheme creates for the litigant wanting to pursue a remedy for age discrimination — something this Court finds particularly important when an employee is attempting to navigate that minefield without the assistance of legal counsel.
Ohio is contemplating expansive changes to its employment discrimination laws. The legislature should take the opportunity to disarm this "minefield" by creating one unified statute of limitations for all discrimination claims (I suggest one year to bring Ohio more in line with its federal counterpart), and eliminate the goofy and confusing election requirement that results from having four different types of age discrimination claims.
Employers who eliminate headcount as part of a reduction in force receive special protection under the age discrimination laws. In a bona fide RIF, the employer has a built-in legitimate, non-discriminatory reason for a termination—the business considerations and economic necessities that caused the job eliminations. In such a case, an employee cannot establish a prima facie case of age discrimination without some additional direct, circumstantial, or statistical evidence showing that age was a factor in the termination. The mere termination of a competent employee in the face of economically based cutbacks is not enough to establish a prima facie case of age discrimination.
What happens, though, when an employer cuts headcount in stages? For example, what if an employer facing economic distress lays off a number of employees, and a year later lays off someone else? Can the employer claim the benefit of the more stringent age discrimination test that accompanies a bona fide RIF for the later termination?
Such was the case in Weisfeld v. PASCO, Inc. (Ohio Ct. App. 4/17/13) [pdf]. In 2009, PASCO lost a contract that accounted for 80 – 90 percent of its revenue. As a result, it laid off more than 80 percent of its employees. Most of those firings happened shortly after the lost contract. The company waited a year, though, to fire six key employees, including Todd Weisfeld, its 48-year-old director of technology, who declined a restructured job as a network coordinator.
In his ensuing age discrimination lawsuit, Mr. Weisfeld argued that the passage of time between when PASCO terminated him as compared to the bulk of his co-workers precluded the company from claiming that Weisfeld’s termination was part of a reduction in force. The court, however, disagreed:
Contrary to Mr. Weisfeld’s understanding, an employee is terminated pursuant to a reduction in force whenever “business considerations” are the driving force behind the company’s decision. It is immaterial that PASCO eliminated some positions immediately after losing the California contract and waited over a year to eliminate other positions. So long as the company’s decision was because of business considerations and it did not replace Mr. Weisfeld with another employee, his discharge was pursuant to a reduction in force.
Absent any evidence that PASCO lacked a legitimate business reason for eliminating its director of technology position, Mr. Weisfeld’s age discrimination claim failed.
This case shows the powerful advantage that employers hold in defending discrimination cases that arise out of reductions in force. It also shows that RIFs can occur in stages and over time. At least according to Weisfeld v. PASCO, an employer can retain key employees during a layoff and still claim the evidentiary benefit of the RIF when economic realities dictate a later termination of those key employees.