How far to the right has the Supreme Court swung?

In reporting on yesterday's oral argument in Sprint/United Management v. Mendelsohn, the New York Times asks the question: "Has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" The answer will not be known until all of this term's employment cases have been decided, but yesterday's oral argument may give us a clue that employees could have a tough go under the Roberts Court.

Many of the Justices seemed very concerned that the admission of "me, too" evidence in discrimination cases would lead to mini-trials of each "me, too" witness. The Justices were also concerned that admission of "me, too" testimony would require correlative admission of "but not us" witnesses in rebuttal by the employer. Trials that could last a mere two days could "last a thousand years," in the words of Justice Breyer, who is not known for his conservative views. The Justices questioned whether it was just simpler and cleaner to exclude the evidence in all but the clearest of cases, such as when the same decisionmaker is involved. After reading the argument transcript, I stand by yesterday's prediction -- the Court will hold that the appellate court erred in reversing the trial court's discretionary exclusion of the "me, too" evidence, and rule that such evidence is neither per se admissible or inadmissible in discrimination cases, but is left to the sound discretion of the trial court under Evidence Rule 403. The Court may also set forth some guideposts for trial courts to follow in exercising its discretion, such as whether the same decisionmaker was involved in the decision to terminate the "me, too" witnesses, or whether there is objective, independent evidence of a policy or practice of discrimination.

Supreme Court to hear arguments today on issue of "me too" discrimination

Sprint/United Management v. Mendelsohn, which will be argued today at the Supreme Court, raises an important evidentiary issue that arises time and again in discrimination cases: "whether a district court must admit 'me, too' evidence — testimony by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff." Although this is an age discrimination case, the Court's holding will almost certainly affect race, gender, and other discrimination lawsuits. The issue is important for businesses, as permitting "me, too" evidence of discrimination will likely make discrimination cases more time-consuming, expensive, and difficult to defend, by forcing companies to defend against allegations brought by employees not parties to the lawsuit.

The facts of Mendelsohn are relatively simple. Ellen Mendelsohn, 51 years old, was one of 18 people in her group laid off by Sprint in the fall of 2002. Company-wide, Sprint laid off 15,000 employees. Sprint claimed that it included Mendelsohn in the RIF because of poor job performance. Mendelsohn claimed age bias in the decision.

At trial, she sought to call five other former Sprint employees, all over the age of 40, to testify that they too suffered age discrimination at Sprint. Sprint objected on the grounds that none of those five employees had worked for the same supervisor who had made the decision to lay off Mendelsohn. The district court agreed, and ruled that only workers laid off by the same supervisor could be called to testify. Ultimately, the jury ruled in Sprint's favor.

The 10th Circuit reversed, ruling that a district court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. It rejected Sprint's contention that the testimony was irrelevant because the witnesses were not terminated by the same supervisor as Mendelsohn. The court concluded that Mendelsohn was entitled to show that there was an unwritten "company-wide policy" of discrimination, under which multiple supervisors, and not just Mendelsohn's, were participating. Further, the court was unconcerned whether there was any evidence substantiating the existence of such a policy other than the plaintiff's subjective belief. Instead, the court found that the evidence is relevant and admissible because a jury could reasonably find the alleged discrimination was made more likely by proof of "an atmosphere of age discrimination" and "Sprint's selection of other older employees to the RIF."

There are any number of reasons why this decision should be reversed. In a discrimination case liability can only be shown by demonstrating discriminatory intent on the part of the decisionmaker (i.e, the person who made the relevant employment decision). Mendelsohn's five "me, too" witnesses, however, could offer nothing to show that Mendelsohn's supervisor acted with discriminatory intent. Additionally, no one had any proof that the various different decisionmakers were acting under some common scheme or plan, other than their own unsupported subjective beliefs. I would concede that the case would be different if there was some independent corroboration of a company-wide policy. Finally, I question the appellate court's reversal of a district court's discretionary evidentiary ruling.

This case will also be interesting from a Court-watching perspective, as it will be the third substantive employment decision out of the the Roberts Court. Last term, the Court was 1-1 in employments cases, with the Ledbetter pay discrimination case coming down for the employer, and the Burlington Northern retaliation decision for the employee. My prediction — a reversal with a holding that "me, too" evidence is not per se admissible in discrimination cases. Dicta will make it clear that such evidence is relevant when it is from the same decisionmaker, or from a different decisionmaker with independent evidence of a company-wide policy of discrimination.

A copy of the oral argument transcript is available from the Supreme Court here.

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.

Thorough harassment investigation secures dismissal of age claim

Bennett v. Saint-Gobain Corp., decided last week by the 1st Circuit Court of Appeals, illustrates the importance of timely and thorough investigations into harassment complaints.

David Bennett was a 62-year-old, British (more on the importance of this fact below), in house patent lawyer for Saint-Gobain. In June 2001, 16 months prior to his termination, Bennett joined a group internal age discrimination grievance filed against the company's deputy general counsel, who was alleged to have said that he wanted to get rid of the older members of the law department's IP group. The company took the grievance seriously, conducted an investigation, and dismissed it as unfounded.
Beginning in the fall of 2001, and continuing through the fall of 2002, another Saint-Gobain employee, Diana Henchey, received four anonymous, sexually tinged poems at work, which she described as unwanted and discomforting. Based on the British spelling of certain words (meagre instead of meager, for example), and a few short encounters with Bennett, Henchey concluded that Bennett might be the amorous author, a fact which she reported to HR.
HR, in turn, asked the company's security department to conduct an investigation into the allegations. That investigation included the retention of an outside handwriting analyst, who determined that it was highly probable that Bennett had written the poems. A search of Bennett's office, to which he consented, revealed copies of other poems that he had written. Upon being advised of the expert's conclusion, the general counsel scheduled a meeting with Bennett for the next day. He did not include the deputy general counsel in the loop of what was happening. Bennett denied authoring the poems Henchey received, and claimed that the poems found in his office were written for his wife. When asked to spell meager, however, Bennett responded "m-e-a-g-r-e." The general counsel concluded that Bennett had written the poems received by Henchey and terminated him. Bennett then sued for age discrimination, among other claims.
The appellate court upheld the trial court's dismissal of the case. On the age claim, the court was persuaded by the company's prompt and extensive investigation into Henchey's harassment complaint. Specifically, the court found that Saint-Gobain had presented a legitimate non-discriminatory reason for the termination -- a belief that Bennett had authored the harassing poems, sent them to Henchey, and lied about them when confronted -- and that Bennett had not offered any evidence of pretext. In the court's words, "In the absence of some other proof that the decisionmaker harbored a discriminatory animus, it is not enough that his perception may have been incorrect. Rather, the plaintiff must show that the decisionmaker did not believe in the accuracy of the reason given." Thus, it was irrelevant whether Bennett actually composed or sent the poems, but only mattered whether the general counsel honestly believed that he did. That honest belief was based on the opinion of the handwriting consultant and the decidedly British spellings used in the poems.
There are valuable lessons to be learned from how Saint-Gobain handled Henchey's harassment complaint.

1. It responded promptly. It did not wait to address Henchey's feelings of discomfort. It acted quickly and decisively to investigate the complaint and make a decision as to what had happened and what corrective action to take.
2. It responded throughly. Harassment investigations almost always turn on credibility. Unless the harasser admits the misconduct (and how many times does that happen?), the company is going to have to make a judgment call based on the credibility of the complaining employee, the accused harasser, and any witnesses. Instead of relying solely on credibility, though, Saint-Gobain gathered some objective evidence to bolster its conclusion (the handwriting expert and the voluntary search of Bennett's office). The court still might have sided with Saint-Gobain in a typical "he said/she said" scenario, but was likely aided in its conclusion that the decisionmaker had an honest belief about the termination decision because of the reliance on the handwriting expert.
3. It responded appropriately. Once Saint-Gobain decided that Bennett had authored and sent the offending poems, and that he had lied about them, it took the most appropriate action it could -- it terminated his employment. It did not warn him and wait for the next complaint. It determined that a serious offense had occurred, which warranted a serious response.
4. It shielded those with potential bias. The general counsel smartly chose to exclude the deputy general counsel, whom Bennett had previously accused of age discrimination, from the investigation. Had the deputy been included in the investigation or decision making process, Bennett would have been able to claim that bias irreparably tainted the investigation, an argument that may have gotten Bennett's claim to a jury.

Many may think that the hiring of an outside expert to analyze Bennett's handwriting is overkill in an internal investigation. This case shows that internal investigations often become the central focus of subsequent litigation, and the more rock solid an investigation is, the easier a later lawsuit will be to defend.

Supreme Court hears oral argument in Federal Express v. Holowecki

The United States Supreme Court today held oral argument in Federal Express v. Holowecki. It is the first of six employment cases the Supremes will decide this term. The issue in Holowecki is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit.

The plaintiff, Patricia Kennedy, submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination at that point. The EEOC neither assigned a charge number to the submission, nor did it inform Fed Ex that it had received the Intake Questionnaire. Five months later, Kennedy filed a class-action ADEA against Fed Ex, and waited another month before finally filing a formal Charge of Discrimination with the EEOC.

An individual claiming age discrimination may not bring a civil action against an employer without first filing a charge of discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction -- it's 300 days in Ohio) of when the alleged discrimination occurs. The employee must wait sixty days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims. The district court granted Fed Ex’s motion to dismiss, finding that the submission of the Intake Questionnaire did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that a charge is sufficient when the employee names the employer and generally describes the alleged discriminatory acts, and if a reasonable person would find that the employee intended to file a charge.

It will now be up to the Supreme Court to determine what constitutes a charge for purposes of opening the jurisdictional gate to the courts on federal age discrimination claims. Links to all of the lower courts' decisions, the various Supreme Court briefs, and the oral argument transcript are available here.

Fed Ex, has a compelling argument to make. Under the appellate court's ruling, the employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. Thus, Fed Ex can claim real prejudice by not having had the opportunity to resolve this case via the EEOC's informal conciliation process.

The following interplay between Chief Justice Roberts and Fed Ex's counsel illustrates this tension:

Chief Justice Roberts: I mean, once the lawyer's involved and they're in litigation and all that, they're not going to take conciliation efforts with the same light as before.... Did you undertake conciliation efforts after her formal, her filing of the Form 5 charge?

Connie Lensing: We were in a lawsuit, Your Honor, and so that sort of changes everything. We can't, we can't talk to her. We can't -- you know, the discovery process is what you then would use to investigate, rather than an informal investigation.

If I was to bet how this case will come out, however, I'm betting on the Roberts Court handing down its second pro-employee decision in as many terms. The EEOC's own internal policies and procedures seem to indicate that the Intake Questionnaire constitutes a "charge," even though it is not a formal charge document. Fed Ex should have received notice of the Intake Questionnaire, putting it on notice of the allegations against it and getting the ball rolling on the processing of the claim and the conciliation process. It is at least possible that the Supreme Court will invalidate the EEOC's own internal rules, but doubtful on what essentially amounts to a clerical issue.

6th Circuit affirms importance of an objective plan to support a reduction in force

It is always so refreshing when a court provides a nice, neat summary to explain its decision in a case. So, when you read the following introductory paragraph from today's 6th Circuit decision in Blair v. Henry Filters, Inc., you might be inclined to think there is no need to read any further:

When a fifty-seven-year-old's direct supervisor taunts him as "the old man on the sales force," removes him from a profitable account because he is "too old," and tells another employee he "needs to set up a younger sales force" before terminating the employee, can the employee's age-discrimination claim survive summary judgment? We believe it can.

The key facts in Blair are few. Blair, 57 years old at the time of his termination in August 2003, worked for Henry Filters, an industrial manufacturer, in 1986. In 2000, John Tsolis became Henry Filter's VP of Sales and Blair's immediate supervisor. Tsolis called himself as "The Terminator," a self-referential nod to his love of firing employees. Blair claimed that in the years leading up to his termination, Tsolis made ageist remarks about him, such as calling him "the old man."

The company, after suffering some financial hardship, between 2001 and 2003, reduced its workforce by terminating 67 employees, out of which 24 were not replaced. That reduction in force lacked a clear plan for its execution. The Court described it as "chaotic, occurring in fits and starts." In August 2003, without explanation, Tsolis notified Blair that his employment was terminated. At the same time, Henry Filters also terminated the employment of a 37-year-old salesperson and a 39-year-old secretary. A few months prior, Tsolis was overheard saying that he needed to set up a younger sales force, although he had no referred to anyone by name. After Blair's departure, a 42-year-old current employee assume his responsibilities for about four months, after which it hired a man in his twenties for a sales position, although there was no evidence of whether than person took over any of Blair's former sales territories. The Court first concluded that the district court correctly concluded that Blair had not presented any direct evidence of age discrimination. The ageist comments he attributed to Tsolis were either not related to the termination decision, or lacked a connection between Tsolis's desire for a younger workforce and Blair's termination.

Notwithstanding the lack of direct evidence of age discrimination, the Court found that the trial court erred in dismissing the age claim. Even though the alleged ageist comments were attenuated in time from the termination decision and not directly tied to the decision to terminate Blair, the Court found that they nevertheless were sufficient circumstantial evidence the Henry Filter singled out Blair for discharge because of his age. The Court also relied heavily on the lack of an objective plan for the reduction in force, noting that "a lack of evidence regarding a company's objective plan to carry out a reduction in force is a factor that might indicate that an alleged reduction in force is pretextual."

There are two key issues worth some discussion. First, there is no reconciliation by the Court of ageism, on the one hand, versus the inclusion of a 37-year-old comparable in the RIF. Secondly, the Court seems to blur of the required showing for a prima facie case and pretext in a reduction in force context. The Court relies on the same exact evidence to conclude that a genuine issue of material fact exists for the 4th element of Blair's prima facie case (i.e., whether there is additional evidence tending to indicate that the employer singled out the plaintiff for discharge for an impermissible reason) and pretext. It appears that if a genuine issue of material fact exists on the 4th prima facie element, the same will hold true for the issue of pretext. Thus, in RIF cases, the Court seems to have eliminated the pretext analysis, putting it all up front in the prima facie showing. At the end of the day, it may not make a difference, since in a RIF case the employer's legitimate non-discriminatory reason (the RIF itself) is self-justifying, and it is always the employee's burden to overcome that reason and prove that it was a discriminatory reason that motivated the discharge. In other words, the battle front is whether the plaintiff was legitimately included in the RIF, and it doesn't much matter through which hoop one makes the plaintiff jump in meeting that burden.

The Blair decision also importantly highlights the need for written objective criteria in carrying out a bona fide reduction in force. Ideally a RIF should be carried out with severance payments in exchange for signed releases, but that is not always the case. Economic or other realities sometimes make severance payments impractical, and some employees would rather take their chances in court than sign a release. All RIFs should be designed and implemented with the understanding that the selection criteria may have to be defended in court. As Blair illustrates, that defense is more difficult without objective criteria as to who stays and who is RIFed. As always, these programs are best designed, or at a minimum reviewed, by employment counsel.

Ohio Supreme Court rejects common law wrongful discharge age discrimination claim

In a 6-1 decision published today, the Ohio Supreme Court, in Leininger v. Pioneer National Latex, held: "A common-law tort claim for wrongful discharge based on Ohio's public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim of age discrimination. The Court concluded "that is is unnecessary to recognize a common-law tort claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society's interest by discouraging the wrongful conduct." Because R.C. 4112.02(N) and 4112.99 have broad remedial language allowing for the full panoply of legally recognized relief (i.e., back pay, front pay, compensatory damages, and punitive damages), the age discrimination statute adequately protects Ohio's strong policy against age discrimination and therefore a parallel common law claim is not needed.

This case is significant for two reasons. First, it continues the Ohio Supreme Court's trend towards the reinvigoration of employment at-will, which started in Wiles v. Medina Auto Parts (as an interesting side note, the same lawyer was on the losing side of both Wiles and Leininger). Given the decision in Wiles, though, Leininger's result is not a surprise.

Perhaps more significant is the underlying effect of this decision on the statute of limitations for age discrimination claims. Common law wrongful discharge claims have a four-year statute of limitations. Because state age discrimination claims are now limited to the statute, such claims will be controlled by the statute's 180-day statute of limitations for age claims (unless the employee elects to pursue the lesser remedies of reinstatement/back pay and attorneys' fees available under R.C. 4112.14 and its six-year statute of limitations). It is safe to assume that this case will also do away with public policy claims for all other forms of discrimination, although that effect will most likely not be felt, since R.C. 4112.99 has a six-year statute of limitations for all types of discrimination other than age. As a result of Leininger, and at least as far as state age claims are concerned, employers will have a greater degree of certainty regarding adverse employment decisions after six months (as opposed to four years) have elapsed.

Court confirms that independent contractors can be discriminated against

In a case affirming the longstanding rule that independent contractors are not covered by Ohio's employment discrimination laws, the Lucas County Court of Appeals highlights the pitfalls employers face in treating workers as independent contractors instead of employees.

Bill Perron served Atlas Roofings as a sales agent. Atlas set forth the terms of his relationship in a Sales Agent Agreement. Under the Agreement, Atlas provided Perron with a specific sales territory, which Atlas could adjust at its own discretion. Perron worked out of an office in his home, and was to use his best efforts to procure customers. Atlas, however, retained control over the products Perron could sell, as well as their pricing and other terms and conditions of sale. Also, Perron was prohibited from selling any competing products. Atlas paid him solely on commission, with no benefits of any kind, because, according to the Agreement, he was "engaged in [his] own independent business." Perron was to maintain his own insurance policies, and pay his own taxes, none of which would be withheld. Finally, to make sure that the terms of the relationship were perfectly clear, the Agreement specifically provided that Perron was an independent contractor.

When Perron turned 65, Atlas began to transition Perron's sales territory to another, presumably younger, representative. In fact, Perron's manager admitted as much in an intra-company e-mail:

As Bill approaches his 65th birthday (late June 2004) we thought of using 2004 as a "transition year" for Bill by starting to develop Bill's eventual replacement group.... Atlas's game plan for Bill Perron had always been for Bill to handle the commercial line for a couple of years, to get him past his 65th birthday.... Thus, the 2004 transition plan would ... keep Bill Perron compensated through November 1, 2004, keeping his Social Security in tack [sic] without fear of penalty for early retirement.

Unsatisfied with a forced retirement, Perron sued Atlas for age discrimination. Despite the smoking gun e-mail, the trial court dismissed the age discrimination claim because Perron was an independent contractor, and not an employee. In Perron v. Hood Indus., Inc. d/b/a Atlas Roofing Corp., the Lucas County Court of Appeals upheld the dismissal of the lawsuit and Perron's treatment as lawful.

While the civil rights laws clearly only cover employees, and not independent contractors, what is not always clear is what qualifies one as an employee as compared to an independent contractor. The Court cited to the well-worn "right of control" test to make its determination:

If the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.... Factors to be considered in determining who has the right to control includes indicia such as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools, and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; any any pertinent agreements or contracts.

The Court agreed that Perron was an independent contractor, and not an employee. In reaching that conclusion, it relied heavily on the language of the Agreement, the fact that he worked out of his home, set his own hours, was paid solely in commissions, received no benefits, and paid his own taxes. The Court was not persuaded by Atlas's discretion and control over its products, pricing, and orders.

Companies might be tempted to use this case as a template for designating workers as contractors. This case, however, could have just as easily been decided in Perron's favor, and on another day it very well might have been. It points out the very real dangers companies face in trying to classify workers as independent contractors. Separate and apart from the serious tax implications of misclassifying an employee as a contractor, I would not want to be in front of a jury trying to justify Atlas's e-mail on a legal distinction between independent contractor and employee. Employers should consider all of the risks associated with classifying someone as an independent contractors, and should not make such a decision without first consulting with employment counsel.

Are we overreacting to Ledbetter?

Today's New York Times reports on current efforts by Senate Democrats to introduce equal pay legislation in light of the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. Recall that in May the Supreme Court ruled 5 to 4 against Lilly Ledbetter, who discovered, after working at Goodyear for nearly 20 years, that her male co-workers had been receiving higher salaries. The Justices started her 180-day statute of limitations upon alleged discriminatory pay decision, time barring her suit.

In light of Ledbetter, the House last month introduced and passed the Lilly Ledbetter Fair Pay Act, which would allow pay discrimination claims to be filed within 180 days of the issuance of a discriminatory paycheck. It seeks to amend Title VII, the ADEA, the ADA, and the Rehabilitation Act to specify that for a claim of compensation discrimination because of race, color, religion, sex, national origin, age, or disability, the discriminatory pay act does not occur, and the statute of limitations does not begin to run, until "an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." In other words, the aggrieved employees would have, depending on the state, 180 or 300 days from the receipt of each alleged discriminatory paycheck to file a charge with the EEOC to challenge the pay decision as discriminatory. According to the New York Times article, Senators Edward Kennedy, Hillary Clinton, Barack Obama, and others intend to introduce similar legislation in the Senate.

If this legislation becomes law (which is doubtful while Bush is still President), pay discrimination claims would have a floating statute of limitations, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty, in that a company needs to know that it will reach a point in time when a decision cannot be challenged in court, and recency, in that at some point in time employees leave companies, memories of events fade, and evidence becomes stale. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision? Senator Kennedy is quoted as saying, “The rules for filing equal-pay claims should reflect basic fairness.” Fairness, however, works both ways, for the employer and the employee. Granting a perpetual statute of limitations fosters a perceived fairness for one at the expense of the other.

EEOC confirms that it is not age discrimination to favor older workers

The EEOC on Friday published revised regulations on age discrimination that conform with the Supreme Court's 2004 ruling in General Dynamics Land Systems, Inc. v. Cline. Cline rejected the notion of "reverse age discrimination" and held that it is not age discrimination for an employer to favor an older employee at the expense of a younger employee, and that such disc. The EEOC's revised regulations, available here, clarify that the ADEA does not prohibit employers from favoring older employees over younger ones when both are protected by the Act:

It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies. Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect applicable state, municipal, or local laws that prohibit such preferences.

Age discrimination lawsuits continue to rise

In an article that will probably not come as much of a surprise to employers, according to today's Houston Chronicle baby boomers continue to battle age-based bias the workplace. What may be surprising, however, is the amount of dollars being spent to resolve cases in which companies almost certainly did not practice age discrimination, and large sums of money that can be at risk once cases are placed into juries' hands. The article discusses a claim filed by the EEOC against Lucent Technologies, settled for $195,000, as compared to a $1,275,000 age discrimination verdict against the University of Missouri-St. Louis in favor of its former basketball coach. Closer to home, a jury in federal court in Cleveland last fall awarded a former New York Life local manager $16 million (including $10 million in punitive damages) in an age discrimination case. As the workforce ages, so will the frequency of claims based on age discrimination.

The lessons for employers are several. First, well documented legitimate reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Secondly, judges and juries will punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive. Finally, all legal issues aside, employers should guide themselves by the golden rule - treat employees as one 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-employee 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.