Employment Law Attorneys
Podcast: The Devil Wears Santoni Shoes – This Boss Was No Angel

Podcast: The Devil Wears Santoni Shoes – This Boss Was No Angel

In this episode, Mark shares a real life story of a woman who was loyal to the company and did everything they asked of her.  But then she became sick with cancer and was fired.  This is a disability discrimination case. We have modified the names and facts to conceal the identities and ensure confidentiality. Her boss was a billionaire but by his actions you would consider him a cheap capitalist.   They refused to make her an employee with health benefits and she struggled for seven years as an independent contractor, working 60-70 hours per week, until the company finally made a her full time employee with health benefits. She had two pregnancies while working, and her employer forced her to work during her pregnancy leaves.  Soon after, she was diagnosed with breast cancer and needed surgery and chemo therapy.  She continued to work tirelessly even while on medical leave. Her cancer spread, she needed more surgery to remove her ovaries and more chemo therapy. She continued to work through her recovery. But then her employer forced her out on family medical leave without her consent, twice.  The second time she was not allowed to return to work and forced into disability leave of absence. The company cut off her health insurance when they terminated her, just as she was to receive further cancer treatments. Her husband was also suffering from cancer and no access to health insurance.   Mark provides commentary about the employer’s discriminatory and unlawful actions to get rid of this employee solely because she was a woman, over forty, and diagnosed with two forms of cancer.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Age Discrimination in Employment: A Most Invisible Prejudice…

Age Discrimination in Employment: A Most Invisible Prejudice…

By Chris Avcollie

Introduction

In some ways, Western culture teaches us to honor and to respect our elders. The fifth Commandment in the Judeo-Christian tradition is: “Honor your father and your mother…” Exodus 20:1-21. But in many contexts, Americans are predisposed to hold negative views of older persons. In the workplace in particular, many people erroneously associate advanced age with incompetence, unreliability, and a lack of productivity. While few hold generalized dislike for older people, many hold false subjective beliefs about the negative effects of aging on workers.  Indeed, 6 out of 10 older workers have recently seen or experienced age discrimination in the workplace and 90 percent of those who have believe that it is a common fact of working life in this country.

Although federal law has prohibited age discrimination in the workplace for more than 50 years, the problem persists. Further, the problem is not going away any time soon. The Bureau of Labor Statistics (“BLS”) has projected that the oldest segment of the workforce will be by far the fastest growing segment over the next thirty years. While research shows that age does not predict ability or performance, employment decisions continue to be influenced by ageism. The subtle and pervasive manner in which business decisions can be influenced by these subjective prejudices about aging makes age discrimination a nearly invisible influence in our organizations. This article examines the legal protections against this most invisible prejudice.

Overview of Legal Protections Against Age Discrimination in the Workplace.

The most widely utilized legislative protection for older workers is the Age Discrimination in Employment Act of 1967 (“ADEA”).  Congress enacted this law to prohibit age discrimination and to promote the employment of older workers. Along with the Equal Pay Act of 1963 and the Civil Rights Act of 1964, these laws laid the foundations of equality that we now expect in the American workplace.

Age discrimination in the workplace involves treating an applicant or employee less favorably because of his or her age. This type of discrimination is called “disparate treatment.” When it enacted the ADEA, Congress recognized that age discrimination was caused primarily by inaccurate assumptions that age negatively impacts work performance. To prevent such arbitrary discrimination, the ADEA requires employers to consider individual ability rather than false assumptions about age in making employment decisions.

Congress had initially considered including age discrimination in Title VII’s prohibitions against racial, ethnic, and gender discrimination. After commissioning a detailed report on age discrimination (the “Wirtz Report”), it concluded that age discrimination derived mostly from unfounded assumptions about decline in the ability of older workers. This was in contrast to workplace discrimination based on race, gender, national origin, and religion, which derived from feelings of dislike or opinions of inferiority about people entirely unrelated to their ability to do their job. Although Title VII would remain a close parallel to the ADEA, these findings led Congress to enact the ADEA as a separate statutory protection.

The ADEA applies to a wide range of employers, including private employers with 20 or more employees as well as state and local governments, employment agencies, labor organizations and the federal government. The Equal Employment Opportunity Commission (“EEOC”) is an administrative agency that enforces the ADEA and other federal discrimination statutes. An administrative charge must be filed with the EEOC within 180 days of a violation. The EEOC investigates and determines whether age discrimination occurred in a given case.

The ADEA prohibits age discrimination against people who are age 40 or older. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one under the ADEA, even if both workers are age 40 or older. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004). Discrimination can occur under the ADEA when both the victim and the person who inflicted the discrimination are over 40, provided there is a significant age difference between the two.

While disparate treatment based on age is clearly prohibited under the ADEA, an employer may discriminate based on factors that are merely correlated with age such as seniority or pension eligibility. There is no disparate treatment under the ADEA when the employer’s adverse decision is motivated by some factor other than the employee’s age.

In addition to discrimination based on disparate treatment, the ADEA makes it unlawful to harass a person because of his or her age. Harassment can include, for example, offensive or derogatory remarks about a person’s age that are frequent or severe enough to create a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The ADEA also prohibits policies that appear age-neutral but have a disproportionately negative impact on older workers. Such policies are unlawful unless they are based on, “reasonable factors other than age” (“RFOA”). Further, the ADEA also makes it unlawful for an employer to retaliate against an individual for filing a charge or for opposing employment practices that discriminate based on age or for testifying at, initiating, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (“BFOQ”) reasonably necessary to the normal operation of the business. The ADEA does not explicitly prohibit an employer from asking an applicant’s age or date of birth. However, such inquiries may discourage older workers from applying for the position or may otherwise indicate possible intent to discriminate based on age.

In 1990 Congress amended the ADEA when it enacted the Older Workers Benefit Protection Act (“OWBPA”). The 1990 amendments specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs might create a disincentive to hire older workers. The OWBPA also set specific requirements that limit the circumstances under which an employer can require its workers to waive their rights under the ADEA.

In addition to the protections of the ADEA under federal law, most states and many municipalities have enacted similar anti-discrimination laws that prohibit age discrimination. Today, nearly every state except South Dakota has a law specifically prohibiting age discrimination in the workplace. Forty-three state laws include age within their omnibus anti-discrimination laws, meaning the same standards and damages apply in age cases as they do in other state law discrimination cases. Thirty-two state laws provide for either compensatory and/or punitive damages, with 21 states providing for both. In most cases the state law protections afford greater coverage, more reasonable standards of proof, and potential for more extensive damages than the ADEA.

For example in Connecticut, the Connecticut Fair Employment Practices Act (“CFEPA”) prohibits employers from discriminating against employees or applicants on the basis of age unless a BFOQ exception applies. Conn. Gen. Stat. Sec. 46a-60(a)(1). Unlike the ADEA, the CFEPA does not specify an age limit for covered employees. The statute applies to all employers of three or more employees. Similarly, in New York, the New York Human Rights Law (“NYHRL”) prohibits age discrimination in employment against individuals 18 years of age or older. The law covers employers with four or more employees (NY Exec. Law Sec. 296 et seq.). These state statutes generally provide greater protections than the ADEA and cover many more small businesses and organizations than the federal statute.

While our collective understanding of aging, work, and discrimination has changed, ageist assumptions still drive many employment decisions. The ADEA and its state law counter-parts are an effective tool to combat this financially, economically, and emotionally devastating practice. But how do these laws actually work?

  • Elements of an Age Discrimination Case.

The ADEA provides that “it shall be unlawful for an employer … to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). While the goals of the ADEA are clear, how does the Act actually achieve that goal? What exactly does one have to prove to bring a successful claim of age discrimination under the ADEA?

While the various types of age discrimination claims (discussed in more detail below) have slightly different standards, the most common type of age claims are disparate treatment claims based on circumstantial evidence. These are claims involving older workers being treated unfavorably as compared to their younger colleagues where the evidence of the mistreatment must be inferred from the circumstances as opposed to direct evidence of discrimination. These claims are governed by a burden-shifting framework set out in the landmark U.S. Supreme Court case McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the framework set up in McDonnell Douglas, a plaintiff bringing an age discrimination case must produce certain evidence at various stages of the case in order to succeed.

First, the plaintiff (employee) must bear the initial burden of raising a small amount of evidence sufficient to establish a basic claim of discrimination. This basic evidence is called the “prima facie case.” If the plaintiff succeeds in raising this basic evidence, the burden shifts to the defendant (employer) who must raise a basic legal justification for the adverse action it took against the employee. This basic legal justification is called a “legitimate non-discriminatory reason” for its action. If the defendant is able to give this basic lawful reason for what it did, the plaintiff then has to show that the employer’s reason was false and that the real reason for the action was discrimination based on age.   Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-106 (2d Cir.2010).

In order to make a prima fascie case, the plaintiff must show evidence supporting four facts:

  • she is a member of a protected class (i.e. over 40 years old);
  • she is qualified for her position and was performing adequately;
  • she suffered an adverse employment action (termination, lost promotion, etc.); and
  • the circumstances of the case give rise to an inference of discrimination.

Id. At 107.

The plaintiff’s burden at this stage of the case is not heavy. The fourth prong of the prima facie case can be satisfied by a variety of facts, including some evidence of the employer’s negative comments about others in the plaintiff’s protected group, more favorable treatment of others not in the protected group, or even the fact that the plaintiff was replaced by someone outside of the protected group. Id.  Next, the defendant must satisfy its burden to produce evidence of a legitimate non-discriminatory reason for its action. The defendant’s burden is also not very heavy at this stage. While the defendant must produce some evidence to support its actions, the evidence does not need to be persuasive. The defendant may meet its burden by showing some evidence that the plaintiff was a poor performer or violated some company policies, for example, or that she was not qualified for the position in question.

Finally,  if the defendant can produce a legitimate reason for its actions, the burden then shifts back to the plaintiff to prove that the defendant’s stated reason for the adverse action was in fact a “pretext” or “false reason” and that the true reason was age discrimination.  At this stage, the plaintiff’s burden becomes heavier as she must prove by a preponderance of the evidence (i.e. “more likely than not”) that age was the direct (or “but-for”) cause of the adverse action.  Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). If the plaintiff is successful in showing that age was the cause of the employment decision at issue, she will have proven her case under the ADEA.

Evidence of Age Discrimination.

When a plaintiff raises a claim of age discrimination under the ADEA, how much evidence must she produce in order to prevail? What kind of evidence is effective and what kind is not? The first standard a plaintiff employee must confront in an ADEA case is the “but for” causation standard. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177–78 (2009), the United States Supreme Court held that to establish a disparate-treatment claim under the plain language of the ADEA, a plaintiff must prove that age was the “but-for” or sole cause of the employer’s adverse decision. Id. Prior to this decision, an employee under the ADEA could prevail even where the illegal age discrimination was one of several motives for the adverse employment action. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Thus, under current federal case law an employee must prove by a preponderance of the evidence that age discrimination was the sole and direct motivation for the employer’s adverse actions against her. “Gross makes clear that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove…that age was the ‘but-for’ cause of the challenged adverse employment action and not just a contributing or motivating factor.” Wagner v. Bd. of Trustees for Connecticut State Univ., No. HHDCV085023775S, 2012 WL 669544, at 10 (Conn. Super. Ct. Jan. 30, 2012). Gross did not, however, reject the McDonnell Douglas burden-shifting framework for ADEA cases altogether.” (Internal quotations omitted.)  Gorzynski, at 106. This “but-for” causation standard is a much more difficult standard to meet than that which applied for much of the history of the ADEA.

Given this difficult federal “but-for” standard, plaintiffs in age discrimination cases are wise to consider bringing age claims under state rather than federal anti-discrimination statutes which often provide a more reasonable standard of proof. For example, in Connecticut, under the CFEPA, state courts have held that the more onerous “but-for” standard does not apply to state age discrimination claims and that the discriminatory motive need only be one of the motivating factors of the adverse action. “This court has also rejected an invitation to apply the ‘but for’ test to state age discrimination claims.”  Gonska v. Highland View Manor, Inc., No. CV126030032S, 2014 WL 3893100, at 8 (Conn. Super. Ct. June 26, 2014). Thus in Connecticut and a number of other states, employees have a better chance of prevailing under state rather than federal law. A plaintiff in Connecticut for example only has to prove that age was one of several motivating factors in the employer’s adverse decision.

Once the applicable standard of causation is determined, the employee plaintiff must determine whether she can produce direct or indirect evidence to support her claims. Direct evidence is usually either a document or the testimony of a first-hand witness that attests explicitly to the discriminatory intent of the employer. An example of direct evidence of discrimination might be a memorandum instructing a manager to terminate all employees over the age of 55.  This type of evidence is of course very rare. “Direct evidence of discriminatory treatment is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse action.” United States v. Hylton, 944 F. Supp. 2d 176, 187 (D. Conn. 2013) (internal quotations omitted), aff’d, 590 F. App’x 13 (2d Cir. 2014).

Indirect evidence, often referred to as “circumstantial evidence” is evidence that tends to prove a key fact by proving other facts.  Indirect evidence of discrimination does not provide direct proof but uses other facts to demonstrate that according to logic, common sense, and experience, discrimination must have been the motive for the employer’s action. An example of indirect evidence would be testimony that a manager terminated all of the employees over age 55. While there could be other reasons why the manager took this action, the fact that she retained all of the younger workers creates an inference that age was the motivation for the terminations. The law makes no distinction between the weight or importance to be given to direct or indirect evidence. The jury must weigh all of the evidence and the decision should be based on the preponderance of the evidence. The “preponderance of the evidence” is the sum total of facts that the jury believes is more likely true than not true.

“Because direct evidence of discrimination—a ‘smoking gun’ … attesting to a discriminatory intent…is typically unavailable, plaintiffs and courts ordinarily proceed by way of the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Holtz v. Rockefeller & Co., 258 F.3d 62, 76 (2d Cir. 2001). As outlined above, the McDonnell Douglas analysis is an orderly method of presenting and examining evidence in the large majority of discrimination cases where direct evidence is unavailable. But when a plaintiff presents direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis becomes unnecessary. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Once an employee provides direct evidence of age discrimination, the burden of proof shifts to the defendant employer to show that they would have made the same decision regardless of discriminatory intent. Fair Hous. Justice Ctr., Inc. v. Cuomo, 2018 WL 4565152, at 11 (S.D.N.Y. Sep. 24, 2018) (internal quotations omitted). If the defendants are able to meet their burden, then, to overcome that showing and to meet her ultimate burden, the plaintiff must show that the discrimination was nevertheless a but-for cause of the adverse employment action. Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

It is important to understand that even where a plaintiff employee cannot produce direct “smoking gun” evidence of age discrimination, she can meet her burden under a McDonnell Douglas analysis by showing that the employer’s legitimate non-discriminatory reasons are in fact false. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). If the plaintiff offered evidence establishing a prima facie case and evidence showing that the employer’s articulated reason is pretextual, the jury may find for the plaintiff. Id. at 148. The plaintiff is not required to introduce additional evidence to prove pretext. Id. Evidence of pretext, however, is not enough on its own. Not only must the jury disbelieve the employer’s reason for its actions it must also believe the employee’s reasons (age discrimination). Where the prima facie case combined with evidence of pretext provides evidence of intentional discrimination, the jury is free to conclude that the “legitimate reasons” for the employment action have been eliminated and it is more likely than not that the employer (who we generally assume acts with some reason) based his decision on an impermissible age consideration.

Are ageist comments made by employer’s decision makers strong evidence of age discrimination? It depends on the context and the comments themselves. Some comments are considered “stray remarks” and are not given much evidentiary weight. Other remarks are probative of discrimination and may reveal unlawful intent. “Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff.” Silver v. N. Shore Univ. Hosp., 490 F.Supp.2d 354, 362 (S.D.N.Y.2007). A given ageist remark will be considered probative where it shows a strong link to the adverse employment decision at issue and where it shows a discriminatory state of mind. While a stray remark about age, without more evidence, is not enough to carry an age discrimination claim, where other indicia of discrimination are presented the remarks are no longer “stray” and a jury may conclude that the comments reflect discriminatory motives. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.1998); See, Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

Types of Age Discrimination Cases.

While age discrimination in the workplace can take many forms, the cases which are actionable under the ADEA fall into one of several general categories.

Disparate Treatment

As discussed above, most age discrimination cases are based on the theory of disparate treatment. This type of discrimination is perhaps the most easily understood. It occurs when an employer treats one or more older workers less favorably than others because of their age. Proof of discriminatory motive is critical, although it can be proven by both direct or circumstantial evidence. In a disparate treatment case, liability depends on whether the employee’s age actually motivated the employer’s decision. This includes cases where the employer relied upon a facially discriminatory policy or where the employer was motivated by age discrimination on an individual basis.

Whatever the employer’s decision-making process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome. As discussed above, “but-for” causation must be proven.  GorzynskiSupra, at 107. A plaintiff employee may be subject to disparate treatment under the ADEA through violations by either explicit or constructive alterations in the terms or conditions of employment.

Disparate Impact

Claims based on disparate impact involve employment policies and practices that are facially neutral as to age but which, in practice, negatively affect the terms, conditions, or privileges of employment for older workers more than younger workers. The key distinguishing feature between disparate impact and disparate treatment claims is that the former do not require proof of discriminatory intent on the part of the employer. Thus, even where the employment policy creating the disparate impact was enacted without any discriminatory motive, the employer may be held liable for its unequal effect on older employees. Smith v. City of Jackson, Miss., 544 U.S. 228, 240, 125 S. Ct. 1536, 1544, 161 L. Ed. 2d 410 (2005).

Although the ADEA authorizes disparate impact claims; an employer’s policy or practice having a disparate impact does not violate the ADEA if the employer’s decision adopting the practice was based on a “reasonable factor other than age” or “RFOA”. Id.  The scope of disparate impact claims under the ADEA is therefore more narrow than under Title VII. See, Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) (alteration omitted) (quoting Smith, 544 U.S. at 241, 125 S.Ct. 1536). The “RFOA” exemption precludes liability under the ADEA even when the “the motivating factor [for the action] is correlated with age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The “RFOA exemption from liability for disparate-impact claims under the ADEA is an affirmative defense, which means the employer bears the burden of proving that it applies. Mabry v. Neighborhood Defender Serv., 769 F.Supp.2d 381, 395 (S.D.N.Y. 2011) (citing Meacham, 554 U.S. at 93–94, 128 S.Ct. 2395).” Cerni v. J.P. Morgan Sec. LLC, 208 F. Supp. 3d 533, 542–43 (S.D.N.Y. 2016).

Hostile Environment/Harassment

Courts in a number of federal circuits have held that the ADEA’s prohibitions on discrimination in the, “compensation, terms, conditions, or privileges of employment, because of such individual’s age” (29 U.S.C. §§ 623(a)(1), 631(a)) also prohibit “requiring people to work in a discriminatorily hostile or abusive environment” based on age. Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 488 (S.D.N.Y. 2019), quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (“Harris’’).   This type of hostile environment claim requires proof of additional elements besides membership in a protected class and adverse action: “To properly plead a hostile work environment claim, a plaintiff must allege that: 1) the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and 2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.” Walsh, at 488.

The hostile conduct based on age must be quite severe in order to be actionable. The employee’s workplace must be, “permeated with discriminatory intimidation, ridicule, and insult … that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 41–42 (2d Cir. 2019). The hostile environment based on age must be both objectively and subjectively severe or pervasive. In other words, it must be so severe that an average person would have found it offensive and the employee must have actually found it offensive herself. If the discriminatory conduct is “severe or pervasive” it is actionable. Green v. Town of E. Haven, No. 18-0143, 2020 WL 1146687 (2d Cir. Mar. 10, 2020).

Hostile environment claims differ from disparate treatment claims based on discrete acts (i.e. termination, demotion, unwarranted discipline) in that they involve repeated conduct over a period of time. Id. In hostile environment claims the unlawful discrimination does not take place on a particular day but rather it occurs over days, weeks, months or even years. Thus, in hostile environment cases, the jury or court may consider evidence of discrimination spanning years. Even behavior which is outside the statute of limitations might be considered as part of a hostile environment theory of age discrimination under certain circumstances. Id.

Just as in a disparate treatment claim, a mixed-motive theory of causation is impermissible in an ADEA hostile environment case. The plaintiff must prove age was the “but-for” causation for the harassment. Further, the employee must demonstrate that the hostile environment is imputed to the employer. Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004). Generally, the plaintiff must show that the employer knew or should have known about the harassment but failed to take remedial action to stop it.

Unlawful Waiver of Rights Under the ADEA

As discussed above, the ADEA was expanded in 1990 when Congress enacted the OWBPA. An employer violates these 1990 amendments by improperly requiring an employee over the age of 40 to waive or surrender his or her rights under the ADEA.  Employers often seek waivers from employees upon separation of employment or in exchange for severance benefits. Waivers are common in settling discrimination claims or in connection with exit incentive or other employment termination programs. To be valid, the waiver must be knowing and voluntary on the part of the employee and must meet minimum standards including:

  • the waiver must be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by the employee;
  • the waiver specifically refers to rights or claims arising under the ADEA;
  • the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • the individual is advised in writing to consult with an attorney prior to executing the agreement;
  • the worker has adequate time to consider the agreement as follows:

(a) the individual is given a period of at least 21 days within which to consider the agreement; or

(b) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(7)  the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(8)  if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate as to:

(a) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(b)  the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

McCormack v. IBM, 145 F. Supp. 3d 258, 266–67 (S.D.N.Y. 2015).

The OWBPA regulations are not so much used as an affirmative basis for claims by plaintiff employees but rather as a counter-defense where defendant employers claim a defense of waiver in response to an ADEA claim. The OWBPA restrictions on waivers are strict and unqualified and employees may not validly waive an ADEA claim unless the employer complies with the statute. Id.

How Do I Recognize Age Discrimination If I See It?

While age discrimination remains very common in the workplace, it often goes unrecognized by both witnesses and those who are its targets. What type of behavior or circumstances should one be watchful for to spot age discrimination in the workplace? How does one recognize this invisible form of  discrimination? The following common workplace situations may indicate age discrimination:

  • Termination

Undeserved Termination: If you are terminated without a good reason, for a reason that does not make sense, under false pretenses such as a phony performance review, or for a reason that you do not believe.

Replaced by a Younger Worker: If you are terminated and your job is filled by a younger worker. If the company tells you that your position was “eliminated” but the job is actually being done by a younger person.

Suspicious Reduction In Force: You were laid off along with a number of other workers or in a large-scale “reduction-in-force” and most of the people selected for lay-offs are older workers.

  • Unequal Discipline/Privileges

Discriminatory Policies: Company policies that have a negative impact on employees based on their age.

Unfair Discipline: Where older workers are disciplined or written up for certain offenses while younger workers are not.

Favoritism: Older workers are excluded from meetings or workplace gatherings, or are given worse assignments, resources, and equipment.

Loss of Duties: Job duties are taken away from an older worker and given to a younger employee without good cause.

Unfair Evaluation: Older workers are held to different standards of performance than younger workers. Performance reviews suddenly decline after a certain age.

  • Promotions/Training

Failure to Promote: If you do not receive or are not considered for promotions due to age or are passed over for promotion in favor of a younger employee who is equally or less qualified than you.

Failure to Train: You are denied a training opportunity or a chance to develop new skills on the job while younger employees are afforded such opportunities for growth. Often technology skills training is denied older workers who are considered less apt because of age.

  • Hiring/Advertising

Refusal to Hire: If you are not hired for a position for which you are qualified, while younger workers who are less or equally qualified are hired for the job. Hiring employers may say they are looking for a candidate with “more energy,” or that they prefer someone with more “growth potential.”  Often the terms, “too experienced” or “overqualified” are used as well.

Job Advertisements: You are not hired for a job which contained an age preference which you did not meet. The ADEA makes this illegal except where age is a necessary factor for the position. Sometimes employers use code words like “enthusiastic” or “energetic” to attract younger workers rather than clear age preferences.

  • Harassment/Retaliation

Age Based Harassment: If your colleagues or superiors make frequent jokes or comments about your age, play age-based pranks, or otherwise treat you differently and single you out because of age. Ageist comments may not be directed squarely at you but may be pervasive in the workplace. If you are exposed to these comments they may be discriminatory and harassing.

Retaliatory Actions: After reporting some other form of age discrimination, the employer begins supervising you unnecessarily, writing you up for petty offenses not enforced against other workers, or changing your work duties or conditions.

  • Retirement

Forced or “Assumed” Retirement: If your company is pressuring you to retire because of your age. If there are suggestions, comments, discussions, or hints that it is time that you retire. Often retirement discussions are raised and the employer claims that he or she “just assumed” you would want to discuss retirement soon. Often when an employer reaches age 65 employers start removing job duties, grooming potential replacements or other activities in anticipation of an older worker’s retirement in which she might not be interested.

Requested Waivers: When employers request that you sign waivers or releases promising not to sue them in exchange for a bonus or continued employment. Any request that you waive or give up rights should be reviewed by your attorney before you sign as these might be illegal.

What Can I Recover in an Age Discrimination Case?

The financial and emotional harm caused by age discrimination on older workers and their families is significant. When an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and she is more likely to take a significant pay cut if she becomes re-employed. The loss of a job has serious long-term financial consequences for older workers. Many must begin living off of retirement savings too soon and must postpone retirement or liquidate assets to get by.  Further, the emotional trauma of age discrimination can affect long term mental and physical health.

The damages available under the ADEA are different than those available under Title VII. An employee in an ADEA case may recover back pay, attorney’s fees, reinstatement or front pay, and liquidated damages in cases where the employer committed “willful violations” of the act. No punitive damages are permitted under the ADEA and compensation for the emotional distress caused by the illegal discrimination is not available. Meyers v. I.B.M. Corp., 335 F.Supp.2d 405, 411 (S.D.N.Y. 2004).

Back pay is the primary form of damages in age discrimination claims. Back pay covers the loss of wages and benefits the employee suffered from the time of the discriminatory action such as termination or demotion to the date the case is resolved either in or out of court. Equal Employment Opportunity Comm’n v. Kallir, Philips, Ross Inc., 420 F. Supp. 919, 923–25 (S.D.N.Y. 1976), aff’d sub nom. E.E.O.C. v. Kallir, Philips, Ross, Inc., 559 F.2d 1203 (2d Cir. 1977). Back pay calculations include the value of health insurance benefits, bonuses, and commission payments that he employee would have been entitled to had the discrimination not occurred.

Reinstatement or front pay is the form of damages used to compensate the employee for the lost wages and benefits she would have earned going forward from the date the case is resolved until she finds a job with equal or greater compensation. Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 482–83 (S.D.N.Y. 2019). The most complete remedy is for the Court to order that the employee be reinstated to the position they lost at full pay and benefits. In some cases, this remedy is impractical because the relationship between the employer and employee has deteriorated beyond repair. In those cases, front pay is used to make up the difference between what the employee could have earned in wages and benefits at the defendant’s company had the discrimination not occurred and what she actually earned after losing the job. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727–29 (2d Cir. 1984).

For both back pay and front pay calculations, the employee is required to make every effort to obtain comparable employment. The plaintiff must “mitigate” or reduce her damages. This means the employee cannot just wait for compensation through the legal system. The plaintiff must seek and obtain the best job she can in order to reduce the amount of damages she suffers from the illegal discrimination. Courts look at the jobs that are available but declined by the plaintiff as well as the positions actually obtained.  The amount earned by the employee is deducted from the total damages. It is the employer’s burden to prove that the employee did not mitigate her damages. While wages and benefits earned are deducted from the total damage award, benefits such as unemployment insurance, social security payments, and pension benefits are not deducted.

While plaintiffs in age discrimination cases cannot recover compensatory (emotional distress) or punitive damages, they can recover liquidated damages in certain cases. “Liquidated damages” are similar to punitive damages in that they are awarded to punish “willful” violations of the ADEA. A claim for willful violation may be proven by showing that the employer either knew it was violating federal law when it took the adverse employment action or that it had a reckless disregard for the law when it acted. Liquidated damages are awarded as a “doubling” or multiple sum equal to the plaintiff’s award for back pay. Koyen v. Consol. Edison Co. of New York, 560 F. Supp. 1161, 1164–68 (S.D.N.Y. 1983).

A plaintiff who successfully prosecutes an age discrimination case is entitled to be compensated for her attorney’s fees and costs of litigation under the ADEA. The amount of attorney’s fees is calculated by the Court based on the time spent and hourly rates of the employee’s attorney. Even where the plaintiff signed a contingency fee agreement with her counsel, attorney’s fees are awarded based on an hourly rate calculated by the Court as reasonable based on the time spent, the experience and expertise of the lawyers and the prevailing standards for similar work in the local legal community. While it is rare for a plaintiff to recover all of the legal fees incurred, this category of damages is often very significant.

What Do I Do About Age Discrimination in My Workplace?

  • Keep Detailed Records and Notes: When it comes to proving any kind of discrimination, the devil is in the details. Keep detailed notes of meetings, interactions, conversations, or any event that may bear on your changing situation at work. If you report an incident to HR or a supervisor, follow up with an email memorializing the report and print it out and keep a copy for your records. If ageist remarks are made at a company training session, write down the date, time, the names and titles of those present, and a precise account of what was said and how people reacted. If a group of younger workers are selected for a training program, note the date of the announcement, who was selected, who made the decision and what the criteria were for selection. If an HR partner discusses “retirement options” with you when you did not ask about them, write down all of the details of the conversation and send a thank you email confirming the meeting took place and that retirement was discussed. Document information regarding your performance and achievements at work as “poor performance” is often a pretextual reason for firing older workers.
  • Report Suspected Incidents of Discrimination to HR: Ignoring the problem will not help. Report instances of ageism or discrimination to HR promptly. Do so in writing whenever possible and cite the company’s anti-discrimination policies if applicable. Create a paper trail. Send emails memorializing the report and keep copies. Follow up and be sure you avail yourself of all of the rights granted under company policies to receive a report of the investigation if any or any other documentation of your complaint. If you are not satisfied with the results speak to someone else in your reporting chain at the company and document that interaction as well.
  • Invest in Career Growth: Common stereotypes of older workers is that they are less sharp or ambitious than their younger colleagues. Defy that stereotype and document the activity. Keep on top of workplace and industry trends and technology. Invest in your own training and professional development. Keep up with company changes and industry standards. Keep records of all of this activity to demonstrate your professional currency should you become the target of ageist employment actions. Defy the stereotypes.
  • Seek Legal Counsel: Seek the advice of an experienced employment attorney as soon as you suspect that you may be a target of age discrimination. An attorney can help you more before the situation comes to a head and can be available to guide you if it does.
  • File Claims Promptly: If you are the target of age discrimination be sure that you properly file your claims of discrimination with the nearest office of the EEOC as well as the appropriate state anti-discrimination agency. If you have an attorney she will take care of that but you should be aware that there are strict time limits for filing age discrimination claims. If you fail to meet any state or federal filing deadline you could lose your right to bring certain claims.

As with all types of illegal employment discrimination, age discrimination can be devastating and overwhelming when you are the target. There is no substitute for skilled legal counsel when you are the subject of unlawful employment practices. Call the law offices of Carey & Associates, P.C. at (203) 255-4150 or send an email to info@capclaw.com for help with any suspected age discrimination in your workplace.

Carey Quoted in Wall Street Journal Article: What Rights Do Furloughed Employees Have?

Carey Quoted in Wall Street Journal Article: What Rights Do Furloughed Employees Have?

Here’s what to know about health insurance benefits, freelance work, unemployment and more

Furloughed workers face uncertainty in a pandemic-stricken economy.

PHOTO: NAM Y. HUH/ASSOCIATED PRESS

By Anne Steele
Link to Orginal article.

What rights do furloughed employees have?

The bottom line

A furlough generally means workers’ hours have been cut or eliminated temporarily, or requires that they take a certain amount of unpaid time off. Furloughed workers are still considered active employees and eligible for some benefits. While furlough doesn’t have a technical legal meaning, employers—especially since the onset of the pandemic—are using the term to signal that it’s a status where employees can expect to maintain their health care benefits and eventually be called back to work. Still, a furlough can lead to termination.

The details

A furlough does not offer job security, though employers choosing to put employees on such leave typically intend to bring them back.

“Employers are operating in a lot of uncertainty right now, where they truly believed what would be two to three months then became eight months, and they’re now having to forecast business needs in a different environment,” says Stephanie Lewis, an attorney with employment law firm Jackson Lewis in Greenville, S.C. “We are seeing companies that are having to convert furloughs into layoffs.”

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Have you or someone you know been furloughed during the pandemic? Share your experience below.

Furloughed workers, while still considered active employees, aren’t paid for time they don’t work. If, however, employers ask employees to work at any point during a furlough, workers must be paid in accordance with their regular salary or hourly rate, says attorney Mark Carey of Carey & Associates, an employment law firm in Southport, Conn.

In the meantime, furloughed employees can and should apply for unemployment benefits. All state unemployment systems were modified to make such workers eligible to collect unemployment.

“You should apply for every week you’re off. Even if you’re off one week and on the next,” says Ms. Lewis.

And while the employer can dictate the length and span of furlough, many are offering flexibility where they can, allowing workers to choose which weeks or months to take off.

If employers furlough employees without terminating their employment, they should make sure those workers are continually offered health care coverage to avoid penalties under the Affordable Care Act.

In fact, says Ms. Lewis, “most employers have worked hard for permission to keep employees covered by benefits.” Many furloughed workers are now crossing into a period where they would be ineligible for coverage—typically after 60 or 90 days on most benefit plans if they’re not actively at work—and would have to move to Cobra, which is more expensive for many people. Employers have requested approval to retain coverage, and benefits providers have allowed that, says Ms. Lewis.

An employer can’t restrict furloughed employees from taking other work outside the company—and employees who find other work may choose to remain in that job even if they’re called back by their original employer.

Companies bringing employees back to work must also treat furloughed employees equally or discrimination issues may arise. “These have to be equal-employment opportunity scenarios with furloughing and bringing employees back to work. People could raise issues of gender, race and age,” says Mr. Carey. Age tends to be the largest problem in rehiring after furlough, he says, as workers who are older tend to be paid more because they’ve been employed longer.

Write to Anne Steele at Anne.Steele@wsj.com

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For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you.

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%.  But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons.  This is the big question many unemployed Americans are now asking.  Please review the following frequently asked questions and see which applies to you.

FAQ:    Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?

FAQ:    Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?

FAQ:    Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?

FAQ:    Were you laid off or terminated and not offered any severance or insufficient severance?

FAQ:    Were your unemployment benefits interfered with?

FAQ:    If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?

FAQ:    Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?

FAQ:    Do you think your Employer was looking for an excuse to get rid of you?

If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.

If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.

Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:

              1) violate or fail to comply with any legislative mandate, act or

              statute;

              2) breach a valid contract or agreement; or

              3) discriminate, harass or retaliate based on a protected class trait.

COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.     

Scenario 1 – Statutory Violations:

Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination.  For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation.  The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified.  The examples are endless, but you get the gist. See further discussion below.

Scenario 2 – Breach of Contract:

Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.

Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:

Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.

In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.

Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you.  However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.

Employer May Have Used Covid-19 As An Excuse to Fire You

However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior.  If you see something, say something to an employment attorney.

There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.

Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.

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