Articles Posted in Age Discrimination

Young_digital_nativeAge discrimination in the technology industry has received considerable media coverage in recent years, as several high-profile technology executives have made quite blatant statements of bias against older workers. Employment discrimination takes many forms, however, and frequently involves subtle actions, or patterns of action, rather than anything overtly and unmistakably discriminatory. The use of certain terms or phrases in job postings may serve as evidence of bias against certain protected groups. Claims against tech companies have alleged age discrimination based on employment advertisements stating preferences like “new grads.” Over the past year, the term “digital native” has emerged as the latest in a long line of possible indicators of age bias by technology companies and other employers around the country.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits discrimination on the basis of age against workers who are at least 40 years old. Exceptions include a “bona fide occupational qualification” involving age, or “reasonable factors other than age.” 29 U.S.C. § 623(f)(1), 29 C.F.R. §§ 1625.6, 1625.7. The statute does not prevent an employer from favoring someone age 40 or older over someone younger than 40, based solely on age. It is only intended to protect older workers from discriminatory practices favoring younger workers. The number of age discrimination complaints received annually by the Equal Opportunity Commission (EEOC) has increased from 15,785 in 1997 to 20,144 in 2015

Statements indicating bias against older workers seem to be common in the tech industry, if the news media are any indication. In 2007, Facebook CEO Mark Zuckerberg, who was 22 years old at the time, stood on stage at a conference and declared that “young people are just smarter.” His company settled an age discrimination claim with state regulators six years later, after the company advertised a job opening with the caveat that it preferred applicants from the “Class of 2007 or 2008.” It is not entirely clear why so many in the tech industry seem to favor younger workers. Youth is by no means an indicator of superior aptitude with computer technology, but that is apparently the perception of many. This is where the term “digital native” comes into play.

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4978362207_200921acb8_z.jpgEmployment discrimination on the basis of age, especially against workers who are into or past what is often considered “middle age,” and who are looking for a job, does not always receive as much media attention as other forms of discrimination. The federal and state laws regarding this type of discrimination are also not as well known or understood. It is becoming more and more of a problem, however, as the American population ages. A few recent cases illustrate how an age discrimination claim in New Jersey might work.

Research regarding the issues faced by older workers indicates that people in their 50s or older tend to have a much harder time finding a job than younger workers. The discrimination is rarely overt, instead taking the form of certain reasons given not to hire someone, such as “You’re overqualified.” This can make discrimination difficult to prove, but the New Jersey Law Against Discrimination (NJLAD) allows claims for age discrimination in employment. N.J. Rev. Stat. § 10:5-12(a). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., also allows civil claims, but it only applies to workers above a certain age in certain situations.

The NJLAD provides relatively strong protection for workers asserting age discrimination claims. New Jersey courts have held that the statute preempts common law claims, such as breach of contract or breach of the covenant of good faith and fair dealing, if they are primarily based on alleged age discrimination. See Broad v. Home Depot USA, 16 F.Supp.3d 413, 419 (D.N.J. 2014). The ADEA protects workers who are 40 years of age or older against discrimination that is not based on a “reasonable factor other than age.” See 29 C.F.R. § 1625.7, 77 Fed. Reg. 19080 (Mar. 30, 2012). It also prohibits workplace harassment based on age. The statute does not, however, prohibit an employer from favoring an older employee over a younger one.
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nao-at-work-63576bb6-da89-4158-bacf-de83b38abac0.jpgIn 2007, Facebook founder and CEO Mark Zuckerberg spoke to a group of aspiring entrepreneurs at a startup workshop at Stanford University about “the importance of being young and technical.” Zuckerberg, who was 22 years old at the time, went on to say that “young people are just smarter.” He cited attributes like “simpler lives,” which would allow younger employees to devote more time to their jobs. Age discrimination has long been a serious issue in the technology industry. The question of whether maintaining a young, energetic workforce–at the cost of losing older, more experienced employees–is ultimately to a company’s benefit is something that tech industry analysts can discuss. Refusing to hire someone solely on the basis of his or her age is often against both state and federal law. This problem is not limited to the tech industry but occurs in many industries all over the country. As the tech industry expands into places like New Jersey, however, the way in which some tech companies proudly tout their “youth” bears scrutiny.

Under the federal Age Discrimination in Employment Act (ADEA), employers may not discriminate against employees in hiring, firing, and other terms and conditions of employment based on the person’s age. 29 U.S.C. § 623(a)(1). This includes limiting job openings to a particular age group, either expressly or by using terms like “new or recent graduates preferred.” The ADEA, however, only applies to workers who are at least 40 years old. 29 U.S.C. § 631. It therefore might not prohibit age discrimination based on a determination that a person is too young. New Jersey’s Law Against Discrimination (LAD) also prohibits discrimination on the basis of age. N.J. Rev. Stat. § 10:5-12(a).

The tech industry, in California’s Silicon Valley and elsewhere, appears to value youth as much as, if not more than, the movie industry in Hollywood or the fashion industry in New York City. This has manifested itself in a variety of ways, from a general lack of “graybeards” to awkward work environments for the older tech workers who do manage to find jobs. It also includes multiple instances of overt age discrimination, such as the sort of job listings mentioned earlier that discourage older job seekers, either by directly stating an age limit or using phrases like “Class of 2007 or 2008 preferred.” A job advertisement using that phrase led to a settlement, which did not include any monetary penalties, between Facebook and California employment regulators in 2013.
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teamwork-294584_640.pngA former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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Home_Depot,_center_aisle,_Natick_MA.jpgA man’s lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a “Value Wheel” to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the “Value Wheel” and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting “illegal and/or improper conduct.” Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company’s profits and stock price. The plaintiff alleges that the company “set a quota of employees that had to be terminated.” Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: “Older/Higher Paid,” “Gay Males,” and “employees who disclosed improper or illegal conduct.” Id. The company’s management allegedly believed that benefits for gay male employees were more expensive “because of the HIV and AIDS virus.” Id. The plaintiff also claims that the company believed that the passage of California’s Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.
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Trinity_School_139_W91_St_jeh.jpgA former coach and physical education teacher has filed suit against his former employer, alleging that he faced unlawful discrimination and was fired in retaliation for speaking out. Kenney v. Trinity School, et al, No. 161600/2013, complaint (NY Sup. Ct., NY Co., Dec. 17, 2013). This case might seem unusual because the plaintiff is a married, heterosexual male with children who alleges that his supervisor, an unmarried homosexual female, discriminated against him based on sexual orientation and marital status. He is asserting causes of action under the New York State Human Rights Law (NYSHRL), NY Exec. L. § 296, and the New York City Human Rights Law (NYCHRL), NYC Admin. Code § 8-107.

According to his complaint, the plaintiff was hired in 1997 to work on a contract basis at the Trinity School in Manhattan. His contract was renewed annually for sixteen years. He claims that he had a good employment record and generally got along with administrators, teachers, and staff at the school. This changed, he claims, when “a homosexual, single, female administrator with no children” became his supervisor. Kenney, complaint at 3. The supervisor allegedly discriminated against him because he is a fifty year-old married man with children.

While the plaintiff had previously received positive reviews on his work, he claims that the new supervisor routinely “berated and reprimanded” him. Id. She also allegedly gave preferential treatment to a younger, unmarried female teacher who did not have children, as well as other similarly-situated employees. The plaintiff claims that the supervisor assigned him work duties that exceeded the requirements of his contract, and refused to take his family responsibilities into account in planning for school activities. He claims that younger, unmarried teachers were not required to perform additional duties.
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file0001381122650 morguefile username clarita.jpgRestaurant chain Ruby Tuesday has agreed to settle a class-action age discrimination lawsuit for a total of $575,000. In EEOC v. Ruby Tuesday, Inc., the nation’s Equal Employment Opportunity Commission (EEOC) accused at least six Ruby Tuesday restaurants in Pennsylvania and Ohio of engaging in discrimination against job applicants over age 40 in violation of the Age Discrimination in Employment Act of 1967 (ADEA). In addition, the restaurant chain allegedly failed to comply with provisions of the ADEA and EEOC regulations that require a business to maintain a copy of employment applications.

As part of the settlement, Ruby Tuesday must work to recruit and hire employees who are over age 40 at the six affected restaurant locations and ensure that all company job advertisements are created in accordance with ADEA requirements. The restaurant chain is also required to conduct regular audits to monitor each restaurant’s compliance with the law and ensure that no future discrimination based upon a job applicant’s or worker’s age takes place. Additionally, Ruby Tuesday has agreed to evaluate managers and other individuals with hiring authority at the affected restaurants based upon his or her ability to recruit and hire older workers. The restaurant chain must also provide extensive training regarding ADEA compliance to a designated compliance monitor, human resources personnel, and anyone with hiring authority at the six restaurants. Finally, Ruby Tuesday agreed to maintain all records related to company hiring practices and provide regular written reports to the EEOC.

Older workers often bring greater experience and leadership skills to the workplace. Despite that aging is a fact of life, some employers choose to discriminate against employees who are over age 40. If a manager makes his or her hiring, compensation, promotion, termination, or other employment decisions based upon a worker’s age, discrimination has occurred. As this case demonstrates, federal law protects workers who are over age 40 from age discrimination. In addition, employment laws in both New York and New Jersey provide discrimination protections for all adult workers or job candidates regardless of age.
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1097209_shaking_hands sxchu username lockstockb.jpgThe Age Discrimination in Employment Act of 1967 makes it illegal for an employer to discriminate against a worker who is over 40 based solely upon his or her age. According to a survey recently conducted by the American Association of Retired Persons (AARP), however, about two-thirds of workers over age 50 have reportedly witnessed or experienced age discrimination at work. More than half of those workers stated they believe such discrimination begins after an employee turns 50.

As part of the survey, the AARP asked more than 1,500 American workers between the ages of 45 and 74 about their workplace experiences. Almost 20 percent of the individuals surveyed stated they believe they were not hired due to their age on at least one occasion and an estimated 12 percent apparently believe they were passed over for promotion as a result. Additionally, nearly 10 percent of older workers said they felt they were denied workplace training opportunities or let go because of their age.

Still, about three-quarters of older workers surveyed said they were not treated differently as a result of their age. Jean Setzfand, Vice President of Financial Security for AARP, said many older people do not realize they are being discriminated against at work. Setzfand stated a specific discriminatory situation usually occurs before many older workers realize their age played a role in their career trajectory. At least one-third of survey respondents allegedly claimed they were not confident they would be able to find a new job quickly without agreeing to be paid a lower wage.

Aging is a simple fact of life. Despite that older workers normally bring greater experience and leadership skills to the workplace, some employers choose to discriminate against them. If an employer makes hiring, promotion, compensation, termination, or many other employment decisions based upon a worker’s age, the employer has engaged in discrimination. Although federal law protects workers over age 40 from age discrimination, both New York and New Jersey protect all adults. In fact, both states legally protect a youthful employee from the so-called reverse age discrimination that may occur when an employer deems a worker to be too young to bring valuable experience to the workplace.
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Standard_Hotel_from_High_Line.jpgA former manager at a “swanky” New York City hotel has filed a lawsuit accusing hotel management of discriminating against her because of her pregnancy. She alleges that her superiors told her repeatedly that she, possibly because of her age and race, was not a good fit in the hotel’s environment. She nevertheless worked eighty- to one-hundred-hour weeks, even well into her pregnancy. She was working when she went into labor, and ended up giving birth in a guest room at the hotel. After that, she alleges that management began eliminating her job duties, and then fired her on what she claims was a pretext.

Tara Tan claims that she helped build the Standard Hotel’s business in the four years that she worked there. Despite putting in long hours, even while pregnant, she alleges that her superiors told her she did not “fit the culture” of the hotel, a prominent nightlife spot in Manhattan’s Meatpacking District. Tan took this as a criticism of her Chinese heritage and her age, as compared to the young, mostly white, “model-like…beautiful people” she says the management preferred to have around. She had reportedly gained weight during an earlier difficult pregnancy, and endured harassment regarding her appearance before the pregnancy that immediately preceded her termination.

Tan was working a late shift on April 30, 2011 when she went into labor at around midnight. She claims that her superiors did not offer any assistance, allegedly because they did not want to disturb the hotel’s party scene. She was sent into a guest room on the fifteenth floor and waited for her husband, who came two hours later from their home in New Jersey. Tan also alleges that when she called the front desk to ask for help, the person on the phone asked if she was joking. The child was born soon after her husband arrived, at around 2:30 a.m. Tan’s husband assisted in the delivery, with Tan’s doctor offering guidance over the phone. They called for an ambulance, and hotel staff made them leave through a side exit so they would not disrupt hotel guests.
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They say knowledge is power. We, as experienced NJ employment attorneys, certainly agree.

To that end, eBossWatch, an organization that allows employees to monitor bosses, used Boss’ Day this year to release a study on workplace harassment and discrimination, and the common charges that are costing employers millions. During the last 12 months, such suits have resulted in more than $356 million in payouts and judgments, according to the Insurance Journal. 1287062_businessman_in_the_office_2.jpg

The most common violation leading to sizable settlement or jury award: Sexual Harassment. Passaic County, New Jersey had the 12th largest payout: $3.7 million in an age discrimination judgment. A $25 million race discrimination lawsuit in Buffalo placed second on the list.

Mercy Hospital took the dubious honors of paying the highest award: $168 million in Sacramento for a sexual harassment lawsuit judgment. Companies in Chicago reported 3 of the 7 highest payouts. The New Jersey Law Against Discrimination (LAD) prevents discrimination based on the protected statuses of race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses.

But the vast majority of employment lawsuits in New Jersey involve sexual harassment or discrimination based on age, sex or race. The same holds true when looking at statistics nationwide: The U.S. Equal Employment Opportunity Commission reported 1,841 cases in New Jersey last year.

-624 sex-based employment lawsuits in New Jersey
-457 race-based cases
-306 national origin
-89 religion
Of course, as the law states above, there are many other protections that may result in an unemployment lawsuit. Last year, New Jersey passed a law banning discrimination against the unemployed. However, sexual harassment remains the most commonly filed.

As we reported recently, New Jersey has paid millions to settle sexual harassment claims against state employers, including many supervisors who remain on the job. In fact, nearly $4 million has been paid to settle 27 sexual-harassment lawsuits in recent years.

New Jersey also just passed the Equal Pay Act, which is meant to address some of the gender inequality remaining in the workplace. Signed Sept. 21, the law requires employers to provide workers with a written copy of such rights. Simply posting those rights will no longer be considered sufficient.

What this means, for women in the workforce in particular, is that vigilance can ensure that you are being paid and treated fairly in the workforce. While we’ve come a long way in promoting equal pay for equal work, there is much work yet to be done. And those who are treated unfairly in the workforce based on gender should seek an experienced employment law attorney in Roseland or elsewhere to help protect their rights.
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