Employment Law Attorneys
Podcast: The Man Who Lost His Voice Box and His Career

Podcast: The Man Who Lost His Voice Box and His Career

Podcast: The Man Who Lost His Voice Box and His Career

In this episode of the Employee Survival Guide, Mark shares a real life story about a successful executive who lost his voice box and his career.  Mark guides us  through the initial stages of the employee’s successful career until he was diagnosed with throat cancer.  Once the employee lost his ability to speak, his employer intentionally discriminated against the employee in an attempt to force him to quick his job. The employee took a leave of absence under the ADA and the FMLA and was able to reach a successful settlement with the employer.  Mark notes the employee was able to carve out of the settlement the employee’s ongoing short and long term disability benefits; he did not waive his claims for STD and LTD benefits.  Mark then describes the difficulty and illegal actions taken by the disability benefits insurance carrier to claim the employee had an anxiety disability and not a physical disability, the loss of his voice box.  Mark describes the administrative process the employee followed to eventually obtain an award for LTD benefits for his physical disability, the loss of his voice box.  Mark concludes by summarizing the multi-layered process that every employee must follow to deal with employment discrimination and unlawful actions by a disability carrier to deny disability benefits.  The employee successfully complained of employment discrimination, obtained a sizable settlement and then proceeded to challenge his disability benefits denial and won.  All of these actions were accomplished without the need for filing a lawsuit or costly litigation in court.

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, including the man who lost his voice box and his career, 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.

What To Expect When You’re Expecting To Be Fired–Severance Negotiation

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

C’mon, Man! Employees Continue to Get Screwed Over

C’mon, Man! Employees Continue to Get Screwed Over

C’mon, Man! Employees Continue to Get Screwed Over: As we await the dawn on this purported new era of social change in America, I can promise you that your employment rights will not improve. I am unapologetic.  In fact, your employment rights have been so eroded by your employers that we are collectively veering toward ever more systemic inequality and racism in the workplace.  Now that I have your attention, what are YOU going to do about it?

You have sat on the sidelines watching others do the heavy lifting, but when are you going to start questioning your employer regarding your employment and the selfish one-sided employment practices you are somehow required to follow, such as the employment at will rule, confidentiality of settlement agreements, and forced arbitration of employment disputes. Can you say “No”?  Maybe?

A majority of you, may never question or oppose your employer because of fear – of losing your job,  income and benefits. I get the financial insecurity issue faced by all, but that’s the employer’s only leverage!   “Come on Man”, as President Biden is often quoted as saying. But really, come on men, women and other, how much pain and suffering has to occur before the collective “YOU” says enough?  If we are in the midst of a new social revolution in support of diversity and equality where big corporations have piled on diversity support initiatives, solely for marketing purposes in my opinion, then we should be seeing signs of dramatic changes to reverse racial inequality at work, promote pay equality and the end of firing older workers (55 and above) just because they cost too much.

Wait, pause, listen- what’s that?  Is that the sound of my meditation music playing in the background?   If #metoo and BLM are real long lasting social movements to correct the injustices at work, I should not be able to hear anything over the gigantic thunder of public outrage toward racial, sexual and age inequality hurtling at my office windows, internet, television, etc.  I have not heard nor read anything after the recent election that indicates real changes beyond political hyperbole.  And as far as I can see, employers continue to default into the same old management practices of yesterday.  Nothing has changed, nor will it change. Employers will continue to screw YOU (collectively) for the near future.  I am writing this article in order to make you understand what your employer does not want you to know about; “default management practices” are real and designed to suppress the collective YOU literally.

Here is why. Employers continue to require the following chains of servitude and secrecy solely to promote their default “control at all costs” position at your expense.  You did know your current employment system stems from the centuries old practices of Master and Servant, right?  The following employment practices are inherently racial, sexist, ageist, homophobic and just downright undemocratic, but you will not hear anyone else dare to say these truths.  I will because I do not care what management or corporations say.  Why don’t you feel the same way?

NDA’s and Confidentiality Agreements Conceal Bad Actors and Bad Companies

Shame and more shame.  If you statutorily ban the use of confidentiality provisions in settlements of employment discrimination cases, bad actors and bad companies will stop discriminating. Why?  Companies will seek to avoid public shaming if we all knew – that a CEO attempted to rape a subordinate, that a billionaire hedge fund manager fired a woman with young children and recently diagnosed with two forms of aggressive cancer, that a Black man was immediately fired after being asked and gave an internal talk regarding the BLM movement, that an older man was fired for losing his voice box due to cancer and told he did not have a physical disability, that a pregnant woman was fired from a large public company because her brain allegedly changed as a result of her pregnancy.  Need I go on?

Some states have decided to ban confidentiality provisions in employment settlement agreements, but they have not gone far enough because employer lobby groups temper down the statutory language and create gaping loopholes for employers to slither through. For example, some employers have conditioned part of the settlement payment requiring the employee (victim) to sign a separate confidentiality agreement.  I brought this to the attention of the relevant state Attorneys General’s Office without even a response.  The statutes are worthless because employers always seek the default to control you and control their self-interest.

Here is the bottom line, remove all confidentiality provisions from every employment settlement agreement and you will directly and substantially decrease all forms of racial, ethnic, sex, sexual orientation, disability, religious and age discrimination. Think about the millions of dollars saved by companies that could be used to train more employees and managers about the Golden Rule.  The money saved by not having to pay attorneys’ fees to employment lawyers like myself.  Please, I beg you to put me out of business, I would be glad to retire.  But employer’s cannot seem to give up this “confidentiality” drug.  There is absolutely no contrary rational argument in favor of the continued use of confidentiality provisions to shield bad actors and bad employers; if there is one let me know.  So why does this nonsense continue?  That’s how powerful employers are, always seeking to maintain this “default” management practice.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.  It’s a bipartisan effort to screw you! As I continue to say, employment law is not political- but NELA says it is (Disclaimer: I am a NELA member, but a registered republican doing the peoples’ work).

Employment At-Will Conceals Discriminatory Behavior and Must Be Banned

I will beat this drum till the end of time.  Most employees, except those in Montana, are capable of being fired for no reason at all and at any moment – this is the employment at-will rule.  The rule should be banned nationwide and replaced with a termination for cause rule.  The at-will rule arose out of the Master and Servant context and is still the current management default rule adversely impacting – everyone, except those employees in Montana and executives with the clout to demand employment contracts with severance and termination for cause.

Why is the at-will rule so dangerous?  When employers do not have to give a reason for termination, employers and managers, who hold a discriminatory bias of any kind, can quietly terminate employees they do not like.  Yes, the at-will rule promotes racism, sexism, disability discrimination, ageism etc.  But again, employers are so addicted to this rule, they can’t give it up.  This issue is equivalent to the opioid crisis and more companies and management counsel continue to prescribe this drug of choice.  That’s how powerful employers are, always seeking to maintain this the most coveted of all “default” management practices.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.

Instituting the termination for cause rule would result in decreased discriminatory practices, as employers would be required to demonstrate an objective factual basis to support the decision to terminate, not one that was arbitrary and capricious – which is what discrimination is.

Forced Arbitration Conceals Everything Bad That Your Employer Does Not Want You To Know About

What is forced arbitration? Simply, your employer says it is a quicker and cheaper way to resolve employment disputes.  It’s not quicker and it’s not cheaper – for you!  It’s called “forced arbitration” because your employer mandated your job offer or your continued employment on your signing the agreement.  You could not negotiate it away and it never benefits you at all.  It is a management default rule and more than 50% of employees in the United States are adversely impacted by this one sided practice.

What is it really?  The sole purpose of arbitration agreements in the employment context is to “conceal” bad actors and bad companies. The adverse effect on all employees is identical to the default use of confidentiality agreements. This default rule is so entrenched in our work culture that courts overwhelmingly compel arbitration in nearly all cases; concealing your claims of discrimination to a nonpublic black hole. There is absolutely no way to publicly discover what types of claims were sent to arbitration, as google cannot crawl it and Westlaw (lawyer research database) can’t search it. It is as if those claims never happened at all, i.e. the woman who was almost raped by the CEO, the Black man fired after being asked to give a BLM explanation etc.   Worse, you cannot shame the corporations for what they did- that’s the point!   It will take an act of Congress to overturn the Federal Arbitration Act, and this current Congress won’t touch this with a 100 mile pole.  That’s how powerful employers really are, always seeking to maintain this “default” management practice at every level.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.

You now know what I would propose, but what will you do to effect real change?

C’mon, Man! Employees Continue to Get Screwed Over: If you would like more information about this topic or would like to hire an employment attorney, please contact Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.

Free Yourself From Forced Arbitration

Four Ways to Get Out of Arbitration Agreements At Work

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

By Chris Avcollie,

In an often-quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character said: “There are no secrets in life; just hidden truths that lie beneath the surface.” For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning. Beneath the surface of most employment settlement agreements lie the undisclosed facts that led to the conflict and which often result in the messy end of an employment relationship. Recently proposed legislation in California seeks to ensure that those “hidden truths” do not remain hidden.

California Proposes New Law – Silence No More Act (SNM Act)

A new law proposed in California this week called the Silenced No More Act (SNM Act) is intended to prevent the enforcement of non-disclosure provisions in a wide variety of employment settlement agreements. The legislation, proposed by California State Senator Connie M. Leyva, will expand upon the 2018 STAND Act (Stand Together Against Non Disclosure) and will protect plaintiffs in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the STAND Act, only plaintiffs in cases of gender discrimination or sexual harassment may avoid non-disclosure provisions. The new law will expand the STAND Act to prevent the use of non-disclosure provisions in employee severance agreements. Under the SNM Act, targets of discrimination based on race, national origin, religion, or gender identity will also now be free to ignore the contractual gag orders companies negotiate into their settlement agreements.

This legislation has been supported by employee rights groups in California including the California Employment Lawyer’s Association and the Equal Rights Advocates.  The new laws are seen as an end to the days when employer misconduct can be hidden from public view. Workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non-disclosure and non-disparagement agreements will no longer be used to silence employees.  The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future.

STAND and SNM Could Influence Other States to Pass Similar Laws

Although STAND and SNM (if it is enacted) are or would be exclusively California laws, these statutes could ultimately have a broad national impact. Other states often follow California’s lead in employment matters. Further, the fact that so many large technology companies are headquartered in California gives these laws an outsized influence on the national conversation about non-disclosure agreements. In the wake of the STAND Act, a number of states have enacted some limitations on non-disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee. Many more states are likely to see some version of this legislation in the future.

More Cow Bell – More Corporate Disclosure and Shaming = More Equality in the Workplace

As am employment attorney, I was very curious about how this new legislation might impact the ability of plaintiff’s lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of misconduct on the part of a company employee or manager. The reason many companies offer settlements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environment. Companies also have an interest in keeping settlements secret to avoid what they see as “encouraging” other claimants looking to “cash in” on potential claims. In other words, the concern is that the non-disclosure and non-disparagement provisions outlawed by the STAND Act and the SNM Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination.

The STAND Caveat

Further examination of the proposed statute reveals that its scope is more limited than I had anticipated. These statutes are actually structured to encourage and not to discourage early settlement of discrimination cases. The STAND Act allows for use and enforcement of NDAs (non-disclosure agreements) in cases where there has not yet been any court or agency filings. So during the initial stage of the claim, when a demand letter has been issued but where claims have not yet been filed with state or federal human rights agencies (such as the Equal Employment Opportunities Commission or “EEOC” in federal discrimination cases or the Connecticut Commission on Human Rights and Opportunities or “CHRO” in Connecticut state discrimination cases) and no lawsuit had been filed, the companies may include NDAs in settlement agreements and they are enforceable.

This exception to the ban on NDAs is highly significant. Far from discouraging early settlements of discrimination claims, this feature of the proposed law offers employers a powerful incentive to settle employment discrimination and harassment claims early. If an early settlement is not reached then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who want to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies.

What Opponents/Management/Defense Attorneys Say About Anti-NDA Legislation

Opponents of the anti-NDA legislation contend that restricting NDAs takes away a survivor’s choice to keep their case private and provides a strong incentive for employers to refuse settlement options and to defend themselves against a publicly disclosed allegation. According to Attorney Jill Basinger, an entertainment litigation partner and Michael L. Smith an associate at Glaser Weil in Los Angeles, “This harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims.”[1] Once an agency filing occurs or a lawsuit is commenced, the NDAs become unenforceable. It seems as if these laws would remove a strong incentive for defendant employers to settle claims.

It appears, however, as if the STAND Act has resulted in an increase in pre-filing mediations in employment cases in California.[2] According to Mariko Yoshihara, the Legislative Counsel and Policy Director for the California Employment Lawyer’s Association, the predictions and fears over the STAND Act impairing the ability to settle have not borne out. According to Attorney Yoshihara, attorneys involved in this type of litigation have informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Yoshihara, it has made it easier to advocate for employee rights from a public policy perspective because the targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California.

Further, fears surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the STAND Act there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The STAND Act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court, at the request of the claimant. California Code of Civil Procedure 1001(c). Thus, the anti-NDA legislation does not force the disclosure of a claimant’s identity.

While many employer advocacy groups including various chambers of commerce and industry and trade associations have opposed legislation such as STAND and SNM, similar legislation should be considered by all state legislatures that have not already enacted similar laws.  When it comes to use of NDAs in employment discrimination and sexual harassment cases there is an unfair imbalance of power between the bargaining parties. The employers who are often defending the harasser or denying that the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personnel, and financial resources. Employers are frequently holding all of the cards in a settlement negotiation. Legislation such as STAND and SNM will help to level the playing field at least with respect to NDAs.

More Power to the People/Employees – Shift In the Balance of Power

Placing the power over which aspects of the case can or will be made public in the hands of the targets of harassment and discrimination will help balance the power in the arena of employment settlement agreements. As evidenced by the initial success of the STAND Act, these laws can be an important tool in ending the culture of silence that has permitted harassing and discriminatory behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critic Marcie Bianco said: “If the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability.”[3] This legislation should help bridge the gap between awareness and accountability. We need to see a whole lot more of those “hidden truths” lying beneath the surface of the American workplace.

If you would like more information about this article, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Christopher S. Avcollie

[1] Basinger, Jill and Smith, Michael L.; “How California’s NDA Restrictions Cause More Harm Than Good for Survivors” (Guest Column); Hollywood Reporter;  https://www.hollywoodreporter.com/news/how-californias-nda-restrictions-cause-more-harm-good-survivors-guest-column-1280922

[2] LeHocky, Mark, “Shining a Needed Light on Harassment and Discrimination Claims: The Collective Benefits from California’s Recent Secret Settlement Restrictions”, Contra Costa County Bar Association, March 2020;   https://www.cccba.org/article/shining-a-needed-light-on-harassment-and-discrimination-claims/

[3] Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.

Employees, Not Independent Contractors: Closing a Loophole to Fair Benefits and Protections for Workers

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

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.


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.


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.

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

Podcast: An Employment Severance Agreement Explained in Detail

What To Expect When You’re Expecting To Be Fired–Severance Negotiation

5 Ways to Beat Employer Performance Improvement Plans (PIPS)

5 Ways to Beat Employer Performance Improvement Plans (PIPS)

By Mark Carey

Really, you’re going to give me a PIP after my dedicated years of service to this company? That’s “bullshyte”! If this sounds recently familiar, it should be.  More and more and more employees are facing PIPs (Performance Improvement Plans).  (See related PIP articles we have written about HERE and HERE).  Here’s the bad news, the odds are you are going to get fired no matter how you react to the PIP. It’s like being unfriended or canceled, because your presence and contributions to the office are no longer valued.   The good news is I have a few ideas to promote your leverage and set yourself up for a severance/settlement package, even where one would never be offered to you. There is one catch, do not do this without an employment attorney.

According to SHRM (Society for Human Resource Management), a PIP “is a tool to give an employee with performance deficiencies the opportunity to succeed. It may be used to address failures to meet specific job goals or to ameliorate behavior-related concerns.” Ugh!  A PIP is a tool to set you up on a rotisserie and slow cook you until you are fired 60-90 days later!  I have never seen in all my years of practice a PIP that was even remotely justified. I am not alone in my disgust of this ancient and crusty management employment practice, Forbes published a story in July 2019 sounding the alarms entitled  “It’s Time We Finally Do Away With Performance Improvement Plans”.

A PIP is more like the red paddle in the grade school principal’s office that she used to enforce the rule of law through corporal punishment. (In reality, my principal was a gem of a lady, but you get the point!)  The PIP screams at you to comply, but for what? You were already working at a 110% capacity, and every performance review up to that point was exceeds or average. So what is the story here?  Is it your gender, sexual orientation,  race, age, etc. that caused you to receive a PIP?  Unfortunately, it is highly likely.  Yes, I am jaded, but at least I know the statistics and how routinely this happens to our clients.

As background for this article, I conducted a bit of legal research among employment discrimination cases that mentioned or discussed the use of performance improvement plans.  I wanted to reaffirm what I already knew to be true, that PIPs are used to set employees up for termination and courts often let employers get away with it.  Performance Improvement Plans are a means to an end-  the end of your job!  Although I enjoy working with my colleagues from the bench, in almost every case I found, the court upheld the validity of the PIP given to the employee. Why is that? You need to understand that Courts are extremely reluctant to second guess employers; they seek to avoid becoming Super-HR Departments.  I did discover a few cases where the performance improvement plan was viewed negatively by the courts, only because the employee was successful in demonstrating a discrimination case at the summary judgment stage of the case.  Specifically, and as I will show you below, the employee was able to factually demonstrate evidence of intentional discrimination in and around the administration of the performance improvement plan, i.e. the employee was able to establish the employer’s reasoning behind the PIP was pretextual or false.  However, the odds currently favor employers, and we seek to change those “Vegas odds” by empowering you with the following tricks of the trade.

Now with all of this information in hand, let me show you how to beat a Performance Improvement Plan.  FYI – I have thought about these comments over a period of weeks to ensure the following strategy points were realistic, practical and successful.

1. Never Sign the PIP Under Any Circumstances and Start Looking for Another Job

Employers always demand that employees sign their performance improvement plans. We advise our clients not to sign them, so as to avoid any level of consent or acknowledgment to the bogus narrative strung through the PIP by the employer.  You are getting fired anyway, so why worry about the threat that you will be fired if you refuse to sign it.  The moment you take a step in the direction to admit anything on the PIP was correct, or the very fact that your received one, your future employment case is doomed!  Receiving the PIP demonstrates you were put on notice of it and the employer will hold you to whatever bogus goals they established for you. I have seen this play out in court where a federal judge held my client to the PIP just because she received it, even though she did not sign it.  Hopefully for you the next job will be better and management will be more employee focused and enlightened.

2. Written PIP Rebuttals and Corporate Whistle Blowing

Do a 180 degree turn on your employer and show them in writing the PIP you just received is part of a systemic problem related to flawed quality control measures, clearly established violations of the Sarbanes-Oxley internal compliance rules, outright corporate fraud, and discrimination.  If they don’t pay attention, well then let them freeze in litigation hell with the authorities. Employers who receive internal complaints also face external scrutiny from the Securities Exchange Commission (if the event involves a material misrepresentation of financial information and is reported directly to the SEC), the U.S. Dept. of Labor (regarding wages) and the U.S. Equal Employment Opportunity Commission (regarding discrimination and retaliation, although in my experience getting the EEOC litigation department to pay attention is like pulling teeth).  Bottom line, if you are a true professional, then your demonstration of proper and ethical corporate practices via your PIP rebuttal and whistle blower claim will protect you from any future allegations of corporate malfeasance or spurious claims of breach of duty of loyalty and care (“aka” attack claims used by defense counsel to make you feel insecure).  You must not go down with the sinking corporate ship and your professional reputation must remain intact.  Afterall, you have personal financial obligations to protect.

3. An All Out Full Frontal Attack😊

I have a skiing motto amongst my knucklehead buddies, DROP IT LIKE IT’S HOT!  (also a song by the same name, listen here). This was on a sign posted before entering an avalanche prone area at Targhee in Wyoming.  When dealing with your unscrupulous employer regarding the PIP you just received, you are going to pull out ALL the guns.

First, get your facts straight, no I’m not kidding. Set your facts to paper in chronological order, because there are inferences, large and small, that flow through and between your fact pattern.  Start with the day you were hired and move forward to the date of the PIP and then beyond.  You want to specifically focus on your prior performance reviews, manager comments and your own comments. Pull the PIP accusations apart and factually rebut them contemporaneous with your fact pattern.  You also want to look around and see if anyone else in your department was treated more favorably than you in any way. Chances are they were. Internal corporate counsel and HR just do not have the time resources to monitor every employee/supervisor relationship.  Yes, there are bad eggs inside every organization- this I know to be true and it keeps my firm busy like bees.   Keep a wide eye for all possible protected classifications you may fall into and the classifications of your colleagues.  Is age, gender, sexual orientation, race, disability, sexual harassment etc. playing a part in the decisions your employer is making with respect to your job?  You will need to report factual situations where your colleagues were treated more favorably than you in your attempt to show how discrimination or retaliation was the real motive behind your supervisors’ PIP accusations.

Next, file an employment discrimination complaint internally to HR, copy to your boss and your boss’s boss. In one case a few years back, I sent the sexual harassment complaint to the CEO’s wife- it worked out in my client’s favor.   All it takes is a simple email stating you are being discriminated against.  Next, take your detailed factual chronology and file an administrative complaint with the EEOC and the relevant state agency.  These two acts will insulate you against immediate termination during the PIP and begin to build a case for retaliation discrimination when you do get fired or demoted.  Remember, internal complaints and complaints to the EEOC are not subject to google searches, so your claims are confidential at this point.

Now that you have effectively blocked or checked your employer’s nonsense, start to think about what you want to do with your new found legal leverage. Normally, our clients start negotiating severance terms, which will eventually lead to your signing a complete release and waiver of your legal claims in exchange for MONEY!  If you are lucky and have a good claim with well supported facts, you can negotiate the right dollar amount to transition you to the next job.

If you are not so fortunate and your employer continues to give you the cold shoulder, the next step is to file a lawsuit. I do it everyday, but for you it’s not so normal.  Also, you need to consider what effect if any having your name appear on a lawsuit out there on the internet.  People do it all the time, so you just need to get comfortable with this small but significant caveat.  Well, now that you are off to the races there is some hope of a settlement during litigation, as 98% of all cases settle at some point in the process. We live in an era of evaporating trials, which is a good sign that parties work out deals.  But if you continue to receive the cold shoulder, as we sometimes do in 20% of all cases, then settle in for a lengthy litigation and the associated financial expense.  Please remember to maintain your full frontal attack posture at every stage mentioned above, as psychology and public exposure play an enormous role in every case.  Good luck and drop it like it’s hot!

4. Fight With Facts But No Legal Claims

Ok, so you went through this article and you realize you don’t have any legal claims to stand on, what do you do?  You also can’t leave your job because you need the income.  This is a tough one and I see it quite often.  You just have to hunker down and face that freight train head-on.   Who knows, you may just survive the Vegas Odds.  Go through the PIP and create a word document, breaking down each section and write a rebuttal. Ignore any employer resistance to your filing a rebuttal or lack of space on the PIP document.  Under each accusation of poor performance, locate and list objective facts that demonstrate your point of view. Hell, throw in your contributions to the financial performance of the company over the past five years, i.e. you saved or made them money.  We will assume here that your performance was not flailing, but your employer wants to hire his colleague from another job to replace you.  All you can do is send a letter containing your factual arguments to each of the purported performance problems.  Send the letter to your boss, to your boss’s boss and to the HR Department.  I would also encourage you to dig down deep into your corporate culture and try demonstrating that you are committed to a lengthy career with this employer.  Show them you bleed corporate colors, but make it believable.  Next, get on the campaign wagon and start networking internally, letting everyone know you are as corporate loyal as it gets.  Finally, say some prayers and go buy a few lottery tickets.   Good luck, you’ll need it

5. Quit and Don’t Look Back- It’s Cheaper

This last strategy begs the question of how you define success here. Sure, you can hire a lawyer and fight the employer and potentially find yourself in a lawsuit and legal fees.  Not spending money on a lawyer is a practical option that most employment lawyers will not advise, but we do. Leave your employment immediately and save the time, expense and anxiety related to dealing with a PIP.  A PIP is really just an employer’s way of saying “here is the writing on the wall please leave”.  I actually prefer the employer just terminate the employee instead of putting her through an unnecessary and worthless process.  No one learns anything from a PIP, not the employee and not the employer.  There is no management epiphany that causes further efficiency within the organization.  What there are a lot of are scorched professional reputations and deeply diminished corporate cultures.  Really, who wants to work in an office that promotes this sort of thing, no one. Yet, management continues to follow this tortured practice.  Give me a break and give yourself a break- RUN!

If you would like more information about this topic, please contact Carey & Associates, P.C. and speak to one of our employment lawyers.  Or send an email to info@capclaw.com.

What bosses should not say to employees?

“Oh ye of little faith!” Does the company I work for have more religious freedom than I do?

“Oh ye of little faith!” Does the company I work for have more religious freedom than I do?

When it comes to freedom of religious expression in the commercial context, the corporation you work for may have more rights than you do. How is this possible? Well, as you may know, there is a peculiar legal doctrine that regards corporate organizations as “persons.” Although we all know corporations are not exactly “people,” the law treats them as if they were. This is what lawyers call a “legal fiction.” We know it’s not literally true but the law pretends it’s true to make things work. This particular legal fiction is the source of many unjust and inequitable laws. What is worse is that it is so deeply ingrained in our jurisprudence that people no longer question it. They should definitely start.

As it applies to the topic of protections for religious expression, our lawmakers and the United States Supreme Court have begun to take this legal fiction a bit too far. In the landmark case Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Supreme Court ruled that closely held for-profit corporations could be exempt from laws to which its owners object on religious grounds if there is a less restrictive means of furthering the law’s objective. Id. at 730-31. This ruling turns on an absurdly broad interpretation of a federal law called the Religious Freedom Restoration Act (RFRA). In Hobby Lobby, the Court recognized for the first time that a corporation could hold religious “beliefs.” While the decision does not explicitly state that corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution, we can someday expect to see that innovation. After all, the other “people” in the country have that right. It’s only fair. Corporations are people too, right?

The Court appears to base its reasoning in Hobby Lobby in part on the idea that by ascribing personal religious freedoms to corporations, the law is protecting the religious freedoms of the corporation’s owners. Id. at 706-07. But what of the rights and beliefs of the workers who make a corporation possible but whom are not privileged to own the company? Are their religious views considered when the company declares the tenets of its deeply held faith? No. Not at all. The owners are presumably the only entities within the corporation that matter, even where the corporation employs thousands of people. What if most of the employees who actually comprise the corporate entity hold entirely different religious beliefs than the owners? Why is a company Christian if its workers are mostly Hindu or vice versa? Can a corporation undergo a religious conversion? Apparently the religious beliefs of a corporation are determined solely by the individual or individuals holding a controlling interest. Surprise plot twist: Court creates more privileges for the wealthy.

This doctrine begs the question: If the owners of the corporation already have all of the individual religious liberties that all other individuals have, why do they get to carry their beliefs into the marketplace and exercise them as a corporate entity as well? The owners of closely held corporations now have an extra set of religious liberties not available to those who do not own corporations. What is the source of this extra set of religious prerogatives?

Hobby Lobby is not a lone anomaly. Apparently bakeries also may have sincerely held religious beliefs that need protection. In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2018), a private cake decorating business claimed that it had the right to ignore Colorado’s civil rights laws prohibiting discrimination based on a customer’s sexual orientation because of its sincerely held religious beliefs. The Court did not directly answer the question as to whether a business has a constitutional right to discriminate based on its owner’s religious beliefs. Instead, the Court decided that in Masterpiece, the Colorado law was unenforceable because the Commission expressed an impermissible hostility towards the bakery’s sincerely held religious convictions. Apparently, the fact that bakeries are simply commercial pastry manufactories that cannot hold personal beliefs except by some absurd metaphysical alchemy was not an important fact the Court needed to acknowledge.

In a case currently pending before the Supreme Court, Fulton v. City of Philadelphia, the Supremes must decide whether the Constitution protects a private corporation’s right to discriminate against LGBTQ couples in violation of the law. The plaintiff in Fulton is Catholic Social Services (CSS), an organization that was hired as a contractor for the City of Philadelphia to place foster children in suitable homes. CSS believes it has the right to violate its contract with the City by intentionally discriminating against LGBTQ couples based on its religious beliefs without losing its contract rights. Fulton challenges the long-held doctrine that neutral laws that apply equally to religious and secular parties without singling out people of faith for inferior treatment are constitutional. CSS also challenges the government’s right to regulate its own contractors in the public interest.

While CSS should not be compelled to enter into any contract that will cause it to violate the religious beliefs of its organizers, when it voluntarily seeks to become a government contractor, it should not be exempt from the laws and regulations which govern such contracts. It certainly should not be exempt from the terms of the contract it voluntarily entered! In Fulton, CSS seeks to bend the public laws to conform to its religious beliefs. In the sphere of public commercial activity, what interest is served by ascribing personal religious beliefs to an organization? Rather than asking the question: Does a private religious organization have the right to dictate how the government conducts its business(?); we should rather ask: Does any organization engaged in commerce in a public market have the right to assert personal religious beliefs to begin with? How will the Supreme Court’s new religious conservative majority answer these questions?

So given that our laws are carving out an expanding set of religious liberties for corporate entities in the public marketplace, what rights do the employees of a corporation have to exercise their religious preferences in the workplace? The answer: almost none. While corporate entities controlled by people with religious views may enter the public marketplace and assert their religious prerogatives at the expense of the government and the general public, a worker at a corporation has very few rights to express or protect his or her sincerely held religious beliefs.

Under Title VII of the Civil Rights Act of 1964, employers are required to provide a reasonable accommodation for an employee’s sincerely held religious beliefs or practices, but only if the accommodation needed does not impose an “undue hardship” on the employer. A reasonable religious accommodation is a modification to a company policy or workplace that permits an employee to practice or express his or her religious beliefs. Accommodations often include minor schedule changes, exemption from vaccinations on religious grounds, relaxation of dress codes, or lateral transfers.

The key to understanding the employer’s obligation to accommodate, however, lies in the use of the term “undue hardship.” In this context, “undue hardship” is defined basically as any factor that disrupts the workplace in any way or that has a more than de minimis cost to the company. Thus, if an employer must incur any identifiable cost or endure any inconvenience to its business, it may deny or ignore an employee’s request for religious accommodation.

Thus, while the Supreme Court has carved out vast areas where a private corporation may assert its religious preferences in the public marketplace to defy the laws and regulations enacted by duly elected government bodies in the interest of the public, an employee cannot assert his or her religious preferences at work even in defiance of a private company’s arbitrary and idiosyncratic policies unless the accommodation has no impact on the business whatsoever. Under the RFRA the government must show that a law is the least restrictive means of accomplishing the law’s purpose in order to enforce it in the face of a private company’s claim of religious imposition. If laws passed by democratically enacted bodies must yield to a corporation’s religious preferences, why doesn’t a private company’s policies have to yield to an individual’s religious convictions? Answer: the company has more religious freedom than its individual employees in the American marketplace.

Corporations are commercial entities formed by leave of the government. They are “things” not “people.” How do we know? They are bought and sold legally. People cannot be bought or sold any longer in this country. When corporations are formed they must seek the permission of the state and local government wherein they are located in order to operate. State and federal laws and regulations are specifically enacted to regulate, limit, and control the conduct of these entities. They are not private persons with individual liberties and “beliefs.” Very few corporations are owned and operated by a single individual. Most corporations involve a multitude of individuals to function, each with his or her own sets of beliefs and liberties.

Further, when one or more individuals form a corporation, the primary objective and chief benefit of that formation is to shield the owners from individual liability. In essence, the whole purpose of the corporate form is to legally distinguish the corporate entity from the individuals that control it. The Supreme Court rulings in Hobby Lobby and the ruling urged by the plaintiffs in Fulton would eliminate the very distinction between owners and entity that the law provided when the corporation was formed. These rulings are not just illogical. They are fundamentally inequitable. Let’s start treating corporations as what they are: things.

If you would like more information about this topic, please contact one of our employment lawyers at Carey & Associates, P.C. at (203) 255-4150 or send an email to info@capclaw.com.

Age Discrimination in Employment: A Most Invisible Prejudice…

Age Discrimination in Employment: A Most Invisible Prejudice…

By Chris Avcollie

Age Discrimination in Employment: A Most Invisible Prejudice… 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.

Employer Tactics Revealed: How Employers Use Age to Terminate Employees

Congress Refuses to Fix the Age Discrimination in Employment Act

Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19:  When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted.  I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?

Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations?  More importantly, what is the specific “interactive process” that will be used to decide these issues?

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.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Disability Discrimination

Are We More Racially Tolerant? Racial Discrimination Cases in Employment Has Actually Decreased by 8% in 2019

Are We More Racially Tolerant? Racial Discrimination Cases in Employment Has Actually Decreased by 8% in 2019

By Mark Carey

Are we a more racially tolerant society today, in terms of how we treat one another at work?  The following statistics demonstrate that we in fact are.  As an employment attorney, I sit watch on the front lines of employment discrimination involving race. Honestly, I believe the number of race cases coming through our offices has decreased since 1997, the year I hung a shingle and began practicing employment law.  Sure, we have handled quite a number of race cases over the past twenty four years, but not as many as you think given todays social and political upheaval.

The U.S. Equal Employment Opportunity Commission (EEOC) has published statistics for race cases filed with the agency for the period 1997-2019, pursuant to Title VII of the 1964 Civil Rights Act.  Click Here for complete statistics. In 1997 the EEOC received 29,199 cases.  By 2019, that number actually decreased to 23,976, a decrease of 5223 or 8%.   The highest number of cases filed was 35,890 in 2010 during the “great recession”.   These numbers do not include the unreported cases that were never filed due to early successful settlement negotiations between the parties.  The numbers above also do not include employment litigation filed directly in federal court pursuant to 42 U.S.C. § 1981, which does not require an employee to administrative exhaust his/her claims before the EEOC.  The above statistics demonstrate an actual decrease in race discrimination cases filed with the EEOC, which is contrary to the current social and political environment we are living through.  To be clear, even one case of racial discrimination is far too many. For what it is worth (“$$”), the total value of reported settlements went from $41.8 million in 1997 to 79.8 million in 2019, an increase of $38 million. However, 2013 recorded the highest value of $112.7 million, evidencing an increase in racial discrimination claims filed during the “great recession” time period.  Whether or not the “great recession” statistics will duplicate themselves during the Covid-19 era will have to wait a few years, as the cases pour in.

On March 23, 2020, the U.S. Supreme Court issued a unanimous decision in Comcast Corp. National Association of African American-Owned Media which made it more difficult for employees claiming race discrimination in employment to demonstrate that their race was the “but for” reason for the adverse employment actions they received at the hands of the employer. This means that employees have to provide more detailed factual evidence, either direct statements by supervisors and managers or strong circumstantial evidence, to get to a jury in Section 1981 cases, but not Title VII cases.  In other words, your evidence better look like an 80% chance or better than you experienced race discrimination or your case will be dismissed.  This is how I have always interpreted the “but for” standard announced by the Court in the above case and in other Supreme Court discrimination cases such as age and retaliation.  By the way, I did conduct a search for statistics for Section 1981 cases on pacer, but could not locate the specifically identified Section 1981 cases filed during 2019.

On the front lines, employees at Facebook recently brought claims for race discrimination to the EEOC.  On July 2, 2020, NPR reported ‘We Have A Black People Problem’: Facebook Worker Claims Racial Discrimination.  According to the NPR story, “In a complaint filed Thursday with the Equal Employment Opportunity Commission,  Oscar Veneszee Jr. said the social network does not give Black workers equal  opportunities in their careers.  “We have a Black people problem,” Veneszee told NPR. Veneszee is a Navy veteran who recruits other veterans and people of color as part of diversity initiatives at Facebook’s infrastructure division. “We’ve set goals to increase diversity at the company, but we’ve  failed to create a culture at the company that finds, grows and keeps Black people at the company.”     Veneszee, who has worked for Facebook since 2017, filed the employment discrimination charge along with Howard Winns, Jr., and Jazsmin Smith — both of whom Veneszee recruited — who said they applied to work at Facebook but had not been hired, they alleged, because they are Black. The claim, they said, was filed on behalf of “all Black Facebook employees and applicants to Facebook.”

Now that we know the above EEOC data, let’s take a look at what type of facts are being alleged regarding race discrimination at work.  Fortunately for us, Facebook employees have provided internal examples.  On November 7, 2019, a dozen anonymous current and former employees posted a Memo on Medium recounting racial discrimination at Facebook.  I have reprinted the examples in their entirety below in order to provide you with the racial and ethnic experiences employees at Facebook are facing.  After twenty-four years of practicing employment litigation for employees, these examples are common across all companies, not just at Facebook.  It is one thing to conclude about the effects of racial discrimination and make pronouncements, but it is ever more impactful to read the day in the life examples emanating from within a company like Facebook.  The more you see the mechanisms of racial discrimination in the workplace, the sooner you can protect yourself and your colleagues from the abusive and invidious biased behavior of management staff and coworkers. We should all make it a personal goal to learn about the factual patterns of race discrimination in order to attack it internally and stop it from ruining more careers and lives.  So, here are the examples to guide you in your own employment situation:

“The experiences highlighted here invoke how we, the twelve Facebook employees   present and past who are sharing our stories here anonymously, have been made to feel as employees by Facebook managers, HR business partners, and their immediate white colleagues. To avoid positively identifying the individuals involved, we will not name the people or business units involved. However, all of the below incidents are factual, with witnesses corroborating the behaviors, and have been thoroughly documented.

1.Over the half, I have received dozens of anonymous, highly positive peer reviews in the internal performance management tool about my work, my partnership, my collaboration, and my leadership. This feedback was received from people across all levels, from those more junior in their careers, to VPs reporting into senior leadership of the company. My manager chose to ignore this feedback and focused on a single piece of anonymous negative feedback that had no context. The feedback from this person was that I was arrogant, aggressive, and self-serving. When asked about the situation this occurred, she said “this is what someone perceives of you, so you need to change your behavior if you want to stay at Facebook.”

2. While eating breakfast, two white employees asked me to clean up after their mess. I am a program manager. I told my manager about the incident. She told me I need to dress more professionally.

3. My manager approaches other leaders and managers with manipulative comments in an effort to sway opinion against me. Statements such as “wouldn’t you agree that she is only focused on herself” and “many people have said that she is not smart” have been shared with me by those whom my manager has been in contact with. When those statements that were intended to negatively influence did not work, my manager used those statements without attribution in my performance review.

4. My manager has directly asked at least two colleagues to provide me negative feedback on my performance review in order to influence my performance rating, which would negatively impact my total compensation. My colleagues refused and instead referred the incident to HR. HR took no action.

5. I spoke at a regular team meeting and gave my opinion about a topic I am a subject matter expert on. I was told after the meeting by the manager that I was disrespectful for speaking at this meeting, that my opinion was not wanted, that I was being arrogant in sharing that opinion, and not to speak at any future meetings unless called upon.

6.On Blind, the app that allows for Facebook employees to post anonymous experiences, we see our colleagues treating us with an aggression unshackled from the constraints of Workplace.

7. I was accused of being a liar and stealing others’ ideas. I asked for specifics about what I allegedly lied about and what I allegedly stole. The response was the person(s) who accused me of this behavior wished to remain anonymous because they did not feel comfortable around me, and that I should assume good intent of them. I asked why good intent was not assumed of me and how I could possibly respond to anything that has absolutely no substance; my manager’s response was that their intent was pure. When asked why others do not need to assume good intent of me, I was told I need to be quiet, more reserved, and highly respectful towards others. When asked how I should respond to the accusation of theft, she said “only I will give you credit for your work, so don’t self-promote on Workplace.”

8. I asked about career growth. I was told to just do my core job. “There is no growth for your role.” The only way for a promotion was to “do what I say”, to “not speak to others outside the team unless given permission”, to “not post on Workplace unless it is a project update”, and to be subservient to her whims.

9. My manager has stated she does not need to attend manager development trainings beyond Facebook Manager Essentials because she only receives positive feedback from her peers. My manager has also stated she is very inclusive and does not need to attend the Managing Bias or Managing Inclusion classes. To further highlight the lack of personal accountability represented here, a majority of Facebook’s development programs are not mandatory, and no follow up is done from the programs, that allows bad actors to continue their behaviors without question.

10.  Our org, which is incredibly diverse in representation, had very low Pulse results in the last half. Rather than be transparent about the changes we need to make, our leader said it was our fault for low Pulse scores and we need to do self-reflection on how to improve our performance.

11. Much of my manager’s behavior occurs verbally. When asked to reiterate comments via text, either in Quip, on Workplace, or via email, she misstates her comments, carefully avoids confirming everything that was said, and uses statements such as “as we discussed” or “as you confirmed” in an effort to hide her intentions and protect her from potential HR or legal action.

12. I was told by my HRBP, after approaching her about the discrimination on my team, “there is no bias at Facebook.””

If you would like more information about this topic please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to info@capclaw.com.

Racial Discrimination

Feedback Responses to Cancel Culture is Illegal At Work

Podcast: Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

Podcast: Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19.  Whether you have an anxiety or panic disorder  or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19.

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.

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