By Chris Avcollie,
Several faithful readers of our humble employment blog have asked us a pressing and important question that many employees are thinking about at the moment: “Can I sue my employer if I get Covid-19 at work?” As with most employment law questions, the answers are neither simple nor straightforward and they depend to a large extent on the laws of the state wherein the employment is located. The basic answer is: “Yes. You can sue your employer if you get Covid-19 at work except in states that have passed statutes prohibiting it, provided you can over-come the significant legal obstacles to this type of claim.” I will attempt to unpack some of the key issues surrounding this significant and timely inquiry. Let’s try to jump those legal hurdles!
The Initial Hurdle: Worker’s Compensation
The answer to the question: “Can I sue my employer if I get Covid-19 at work?” depends, in the first instance, upon what you mean by the word, “sue.” In a broad sense, most people consider “suing” to encompass any type of legal claim against another party. Lawyers, however, use this term to refer specifically to the initiation of a lawsuit against another party in court. In this instance, we must carefully distinguish between the term “lawsuit” or a civil action for damages brought in a trial court and “Worker’s Compensation claim,” which is an administrative action usually brought before a state agency to seek statutorily limited compensation for work related injuries.
In most cases where one can demonstrate that one has contracted Covid-19 at work, the infected employee can bring a Worker’s Compensation claim. It is important to note that this is not a “lawsuit.” The primary difference between a “lawsuit” and a “Worker’s Compensation claim” is that a plaintiff in a lawsuit can seek full, fair, and just compensation for all of his or her damages and losses as well as equitable relief if applicable. In a Worker’s Compensation case, the claimant may seek only the limited damages set forth in the state’s Workers Compensation statutes. Worker’s Compensation is therefore a very limited remedy. The benefit of a claim under Worker’s Compensation laws is that unlike the plaintiff in a lawsuit, the claimant in a Worker’s Compensation suit need not prove that the employer was at fault or that he or she committed some negligence, recklessness, or misconduct which caused the damages. It is enough to prove that the injury or illness in this case, occurred at work. Additionally, the claimant in a Worker’s Compensation case need only prove the type of injury or illness sustained at work and the damages are then calculated by a statutory formula. Thus, the Worker’s Compensation system is considered a “trade-off.” Claimants give up a portion of the damages they could otherwise obtain at law, but they are relieved of much of the delay, cost, and burdens of proof that litigants face in court. Hereafter, we will refer to Worker’s Compensation cases as “claims” and actions for damages brought in court as “lawsuits.”
The most commonly available remedy for a worker who contracts Covid-19 at work is the Worker’s Compensation claim. Most every state that has a Worker’s Compensation system also has laws that make Worker’s Compensation the “sole and exclusive remedy” for all workplace illnesses or injuries. This means that a Worker’s Compensation claim is the only type of claim an employee may bring. Injured workers do not have a choice to pursue their damages in court if they wish. This means that as an initial matter, most cases involving Covid-19 at work are going to be resolved in the Worker’s Compensation process and no lawsuit may be filed except in very specific circumstances. That means most cases of workplace Covid-19 are going to be poorly compensated. Even in cases involving the death of the infected employee, the exclusivity rule of the Worker’s Compensation system will often prohibit the employee’s survivors from filing a lawsuit for wrongful death. Even survivor’s claims are strictly limited to the Worker’s Compensation system.
On February 14, 2021, Lauren Weber of The Wall Street Journal published an article captioned “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected“. The take away is that employees are facing a high bar to prove their Covid-19 Workers’ Compensation claims.
The Liability Hurdle: Intentional or Willful Conduct
So what are the “specific circumstances” when an infected employee might be able to get around the exclusivity rule of the Worker’s Compensation system and file a Covid-19 lawsuit against their employer? One common exception to the exclusivity rule is the third-party exception. If a person or entity other than your employer causes your workplace illness or injury, an employee may sue that third party depending on the applicable state laws. Another common exception applies in some states in cases where the employer does not carry Worker’s Compensation insurance. In some states that do not include occupational illnesses in the category of compensable injuries under their Worker’s Compensation law, employees may sue their employers for Covid-19 infections. The most common exception to the exclusivity rule involves cases where the employer either intentionally or willfully engaged in misconduct that caused the worker’s illness or injury.
In Connecticut, this exception is called a “Suarez Case” after the case called Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997), where the Connecticut Supreme Court held that employees could sue their employers (for illness or injury) in cases where the employee can prove: “either that the employer actually intended to injure the plaintiff (“actual intent” standard) or that the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (“substantial certainty” standard).” Id., at 257–58. This standard provides a very narrow exception to the exclusivity rule because it is so difficult to establish. The plaintiff employee must prove that the employer intentionally or deliberately created the dangerous situation under circumstances where the injury or illness was very likely to occur. Not many employers would deliberately harm their workers, so this is quite difficult to prove. Many states have exceptions similar to Connecticut’s Suarez exception, although the standards differ from state to state.
For example in some states such as Arizona and New York, the exception applies only if an employer’s purposeful actions were actually intended to harm the employee. Florida only allows the exception where an injured employee can prove that the employer’s actions were “virtually certain” to cause the worker’s injury, that the employee was unaware of the risk, and where the employer took steps to conceal the danger. Texas allows the exception only in cases that result in the wrongful death of the employee and only if the employer exhibited, “gross negligence.” New Jersey, like Connecticut, has a slightly lower but still formidable standard. New Jersey’s Supreme Court has held that the employee does not have to prove that the employer intended the harm the employee, only that there was a “substantial certainty” that the employee would be injured. While these state law exceptions to the exclusivity rule are burdensome, it is not yet clear in most states how courts will apply them to Covid-19 cases where employers disregard established safety protocols like mask-wearing, social-distancing, work from home options, and reduced capacity. Is Covid-19 “virtually certain to occur” in public workspaces where mask-wearing, health screening, and social distancing precautions are not enforced?
One important distinction to understand here is the difference between claims of negligence and those involving intentional conduct. While most injury lawsuits are based on the concept of “negligence” which is the standard of liability which applies where a party breaches the ordinary standards of care in circumstances where an injury is foreseeable, the exceptions to the Worker’s Compensation exclusivity rule generally require some level of intentional conduct to succeed. Employers who are merely negligent or careless can almost never be sued for Covid-19. Because of the exclusivity rule this means that employees cannot file a lawsuit in cases where an employer was merely negligent or careless in following Covid-19 protocols and workplace safety rules. In cases involving employer negligence or carelessness, only a Worker’s Compensation claim would be available. Merely proving careless or inconsistent enforcement of Covid-19 safety protocols is not enough to meet the exceptions to the exclusivity rule.
The Big Hurdle: Causation
In workplace Covid-19 lawsuits, the largest hurdle to overcome in my view is the hurdle of causation. A claimant in a Worker’s Compensation case only needs to prove that he or she contracted the virus at work. This in itself can be a herculean task. Extensive and well documented contact tracing and even genetic sequencing of the relevant strains of the virus by public health officials may be required to prove where and when someone contracted the disease. This can be devilishly challenging in the case of a highly contagious and widespread virus because it can be contracted easily almost anywhere one goes in public. If the coffee shop you stop to pick up coffee at on the way to work, the gas station you go to twice a week, and your grocery store, as well as your office all have cases of Covid-19, how can one prove that it was more likely than not that the would-be plaintiff caught the virus at one location and not the others? Merely proving that it is more likely than not that you contracted the virus at work is a huge task.
A plaintiff in a lawsuit, however, must not only prove that the virus was contracted at work, but also that the employer’s actions or inactions caused the employee to contract the illness. This is a much more difficult burden of proof. Did the employer cause the employee to contract the virus where mask mandates were not enforced but social distancing was practiced? If cases of Covid-19 circulated among the staff who were required to wear masks can it be proven that the failure of the employer to enforce mask wearing among customers caused the employee’s illness?
The Last Hurdle: Proving Damages
If an infected plaintiff employee is able to clear the Worker’s Compensation hurdle, overcome the intentional conduct hurdle, and summon evidence to surmount the causation hurdle, the final hurdle in bringing a Covid-19 case in court against your employer is proving and calculating the damages that you are asking to be awarded. As with liability, questions of damages are more easily resolved in a Worker’s Compensation claim than in a lawsuit. At Worker’s Compensation, damages are strictly limited to set categories of damages and a specific formula calculation. Damages for pain and suffering and emotional distress are often very limited or unavailable in a Worker’s Compensation claim. In a lawsuit, however, each element of damage must be proven by the plaintiff by a preponderance of the evidence.
How does one calculate the damages suffered when one contracts a deadly disease amidst a global pandemic? Symptoms for Covid-19 can range from no symptoms at all to death and all levels of illness in between. Can damages be calculated for the suffering that occurs when one unknowingly infects one’s spouse or children with Covid-19 due to an employer’s misconduct? What damages should be awarded in cases where an infected employee is only mildly ill for several weeks but because the employee is suffering from medical conditions that put her at high risk of death from Covid-19, she spends those weeks in constant fear of imminent death? How can a plaintiff be compensated where he or she is suffering from long term complications from Covid-19 that doctors do not know yet how to treat? While many types of damage are not compensable in the Worker’s Compensation context they must be proven and calculated in a lawsuit.
State Imposed Hurdles: Statutory Liability Shields
Some states have created special laws that shield some or all of its employers from lawsuits related to Covid-19. Many states, including Connecticut and New York, have enacted laws that shield healthcare facilities from liability related to Covid-19 infections. States such as Michigan have passed laws that shield all employers from Covid-19 liability. Ohio has passed a law that shields nearly all employers from Covid-19 liability from its workers unless the employer engaged in willful and reckless misconduct. Many of these state shielding laws have exceptions similar to the Worker’s Compensation exclusivity exceptions such as for intentional misconduct or intentional disregard of government imposed safety protocols.
Some creative plaintiffs and their lawyers have tried to get around these liability shields and the Workers Compensation hurdles by framing their lawsuits under alternative theories of liability. A number of lawsuits have been filed against employers who disregard Covid-19 safety protocols under theories that they have created a public nuisance. These suits allege that the employer is creating a dangerous situation to the public by failing to take proper Covid-19 precautions. Plaintiffs in these cases often seek court-ordered injunctions requiring the offending employer to enforce safety procedures. Cases have also been filed alleging the employer’s breach of OSHA safety guidelines. Other employees have sued their employers under whistleblower protection laws. Employees who file “whistleblower” claims have alleged that they were terminated illegally for complaining about the employer’s failure to follow proper safety protocols. Several states allow employees to bring claims of constructive discharge in Covid-19 cases. These claims allege that the employee was forced to quit her job because she was put in danger by her employer’s failure to follow safety protocols.
While these state imposed liability shields do not make it completely impossible to bring a lawsuit for Covid-19 in the workplace, they make the bar so high that only the most egregious cases of employer misconduct could have a chance of success. Each state is currently working out its own legislative and judicial tolerance for worker suits related to Covid-19.
What to Do If You Are at Risk of Covid-19 Due to an Unsafe Workplace
Given the high hurdles the law has erected to make it difficult to sue an employer for a workplace Covid-19 infection, what can you do to protect yourself if your employer is not implementing appropriate safety precautions? I recommend the following:
-Report the unsafe conditions to your employer or Human Resources department in writing. In many cases employers want to provide a safe environment but they may not be aware of all of the protocol violations throughout their organization. Making your complaint in writing will also help to document your efforts to address the problem should you need to make a claim later.
-Document the violations of protocol as well as your efforts to communicate them to management. This is important to demonstrate the nature of the unsafe conditions should you need to prove them in later. Strong evidence of the unsafe conditions in the workplace will be needed for any type of claim or lawsuit related to Covid-19..
-If management does not address the Covid-19 related safety issues promptly, then make a report in writing to OSHA and to your state Department of Public Health. A detailed report outlining the safety violations and any other relevant information could trigger an agency investigation that could help address the issues.
-In some states you can terminate your employment and bring suit against your employer for constructive discharge if you are forced to quit in order to protect your health and safety. In other states you cannot bring such a suit but you may have to leave your job anyway. Although it is deeply unfair that employees sometimes have to choose between their health and their livelihood, the limited legal options provided to address Covid-19 in the workplace may make that life or death choice necessary.
-Seek an experienced employment attorney to help you navigate the situation. Dealing with an unsafe work environment due to Covid-19 can be difficult and confusing. There is no substitute for a skilled employment attorney in these circumstances. Seek legal advice as soon as you observe a problem at work.
The issue of whether to hold employers liable for Covid-19 infections in the workplace raises fundamental questions about our social and economic values. How should we apportion the inevitable risks of commercial activity in society? Should the employers shoulder more of the burden because they profit the most from the economic activity? Should employees deal with the risks themselves since they are free to choose more or less safe work environments as they wish? Should the government provide some compensation to victims of Covid-19 who risked their health to increase our gross domestic product and therefore our national interests? While most Americans seem to honor the front-line workers who have courageously pulled our nation through the early stages of the pandemic, we seem to be reluctant to provide any equitable legal remedies to them when they become sick or die serving our collective good. Removing some of the hurdles employees have to jump over to obtain compensation for unsafe working environments during the pandemic would be a great first step.
If you need advice on a Covid-19 risk at work or any unsafe working condition, please contact us at Carey & Associates, P.C. at firstname.lastname@example.org or call (203-255-4150. Chris Avcollie is an Associate Employment Law Attorney with the firm.
By Chris Avcollie
In response to a recent Carey & Associates, P.C. survey of topics of interest in employment law, some of our readers asked: “Are non-competition agreements enforceable against independent contractors?” This is an excellent question. The short answer in Connecticut is: “Yes, but with some exceptions and special circumstances.”
What Is A Non-Competition Agreement?
Non-competition agreements are special contracts between employers and their workers which prohibit workers from engaging in business activities that compete with their former employers, usually for a fixed period of time following the end of an employment relationship and usually within a definite geographical area. These agreements, often called, “restrictive covenants” allow employers to prevent a former employee or contractor from earning a living in his or her business after the employment relationship ends.
Courts Generally Enforce Non-Competition Agreements
Courts in Connecticut will generally enforce non-competition agreements provided there is consideration provided for the promise not to compete and provided the restrictions are not unreasonable to protect the employer’s legitimate business interests. Facts which our courts consider in evaluating the “reasonableness” of an non-competition agreements include: (1) the duration of the restriction, (2) the scope of the geographic restriction, (3) the protection afforded to the employer, (4) the degree of restriction on the employee’s career opportunities, and (5) whether the restrictions are in the public’s interest. If even one factor fails the “reasonableness” test, the non-competition agreements could be held to be unenforceable.
In Connecticut, as in many states, there are no statutes or regulations that specifically address non-competition agreements outside of the medical profession. Whether a non-compete agreement is enforceable against an independent contractor is not specifically addressed under Connecticut law at this time. Our courts do not formally distinguish between non-competition agreements with employees as opposed to independent contractors. That being said, the five-factor analysis described above does vary when it is applied to the independent contractor relationship. When courts analyze the fourth factor, i.e., the effect the non-competition agreements has on the worker’s career opportunities, our courts must account for the fact that independent contractors are by definition expected to serve more than a single customer at one time. That is what makes them, “independent.” Notwithstanding this obvious basis to reject all non-competition agreements as applied to independent contractors, our courts will often find non-competition agreements enforceable. For example, non-competition agreements were upheld in circumstances where an independent contractor uses their position with the employer to gain information to set up a competing business for themselves.
Rationale For Non-Competition Agreements Are Faulty
The concepts underlying and justifying these restrictive covenants are faulty. One underlying notion that is misapplied to non-competition agreements is the “freedom of contract.” This legal fiction posits that individuals and firms are free to act in the marketplace in their own best interests and are therefore free to make any lawful agreements they see fit. Unfortunately for most workers this “freedom” is an illusion. The notion that workers who do not want to be bound by non-competition agreements can simply “choose” to work elsewhere is absurd. Jobs are difficult to find during the best of times. During a global pandemic amid skyrocketing unemployment, locating a good position can be overwhelmingly difficult. If one is restricted from using one’s business contacts, skills, and training to function in the market and the industry in which one has established a record of experience, the task of finding gainful employment becomes insurmountable. In the employment context the power and resources of the employer as opposed to the employee is generally so unbalanced that “freedom of contract” is a bad joke.
While non-competition agreements are becoming increasingly common, these restrictions on a person’s ability to work often cause extreme hardship on workers who must find continuous employment within their chosen industry in order to survive and to support their families. Why should an employer who has no legal obligation to employ its workers for any period of time get to dictate to a former employee where and how he or she can work? How can such an economically crippling restriction between parties of drastically unequal bargaining power be tolerated by courts of equity?
In a recent article, Attorney Mark Carey explores the profound injustice of restricting an employee’s right to work. (Covid-19 Cancels All Noncompete Agreements Due to Impossibility) During a pandemic where millions of American workers are unemployed, restricting anyone’s freedom to work is patently unconscionable. While our courts consistently uphold “reasonable” restrictions on competition, the Connecticut state legislature is at last beginning to address the problem directly.
In another recent article on this blog, Attorney Liz Swedock explains the provisions of a piece of proposed legislation currently under consideration by the Connecticut Legislature’s Labor and Public Employee Committee.(Connecticut “May Pass” a Partial Ban on Noncompetition Agreements). The new proposed legislation, SB 906, “An Act Concerning Non-Compete Agreements” would impose some reasonable limits on an employer’s ability to enforce a non-compete agreement. As it applies to independent contractors, SB 906 would prohibit non-competition agreements against contractors unless the contractor is being paid over five times the minimum wage or $60.00 per hour. While this proposed legislation is a step in the right direction in that it prevents non-competition agreements from victimizing the lowest-paid workers in the marketplace, it does not address the fundamental injustice of these agreements. The legislature’s special treatment of independent contractors under SB 906 indicates a recognition that employees and contractors are not in the same position with respect to these contracts.
Independent Contractors Serve More Than One Master
When it comes to independent contractors, the applicability of non-competition agreements becomes quite complex. While courts have recognized an employer’s interest in protecting its trade secrets and “good will” through non-competition agreements, independent contractors are by definition, not bound to a single employer, although in practice they sometimes are. The term “independent” refers to a contractor’s ability to provide goods and services to many businesses at once. Employees on the other hand are generally obligated to devote all of their productive time and energy to furthering the interests of their employer.
Employers Face Risks When Enforcing Non-Compete Against Independent Contractor
There are risks for employers who try to enforce non-competition agreements against independent contractors. When an employer imposes non-competition restrictions on an independent contractor, it runs the risk of changing the nature of its relationship with that worker. Where an employer exercises a high degree of control over the work of a contractor, that contractor could be considered a regular employee. Imposing a non-competition agreement could be construed as evidence of the very control that marks a traditional employment relationship.
Thus, employers sometimes seek to enforce non-competition agreements but are then counter-sued for employee benefits and wages based on the assertion of control under the non-competition agreement. Employers could incur liability for wages, administrative fines, or worker’s compensation benefits when an employee is “misclassified” as an independent contractor. This fact gives employers pause when enforcing non-competition agreements against their independent contractors.
Non-Competition Agreements Are Overreaching
In general, while courts in Connecticut will enforce non-competition agreements against independent contractors where they are held to be “reasonable”, it is difficult to justify the necessity of these restrictions. While employers often justify their restrictive covenants by asserting their right to protect confidential business information, this argument is irrelevant given the fact that all of an employer’s proprietary information is protected under trade secret and intellectual property protection statutes. Further, employers can and do include broad confidentiality and non-disclosure provisions into their employment agreements, which provide contractual protections from dissemination of vital company information. It is simply over-kill and over-reach to also seek to prevent competition from former workers whether they are employees or contractors.
The basic answer to the reader’s question about enforceability of non-competition agreements against independent contractors is that they are enforceable against independent contractors, but it is slightly more difficult and definitely riskier for employers to enforce such agreements against them. The larger answer is that all non-competes are inherently unjust, inequitable, and should be resisted by employees and contractors alike.
If you would like more information about this topic or would like to hire an employment attorney, please contact Carey & Associates, P.C. at email@example.com or call (203) 255-4150.
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.” 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. 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.” 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 firstname.lastname@example.org or call 203-255-4150.
 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
 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/
 Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.
By Chris Avcollie
In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”
As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.
As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?
The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.
If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.
There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?
One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.
While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”
A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.
While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.
There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”
If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. You can also send an email to email@example.com or call (203) 255-4150. If you liked this article, please leave us a review HERE.
By Chris Avcollie
In 1849, Henry David Thoreau was imprisoned for an act of civil disobedience. Thoreau had broken local laws by refusing to pay a poll tax which he found to be unconscionable. The story goes that when Thoreau’s friend Ralph Waldo Emerson visited Thoreau in jail he asked, “Henry, what are you doing in there?” To which, Thoreau replied, “Waldo, the question is what are you doing out there?”
Even in a free country, there are often profound consequences attached to the exercise of political conscience. On January 6, 2021 hundreds of pro-Trump protestors stormed the Capitol Building in Washington, D.C. in an attempt to stop the congressional certification of the electoral college vote which elected Joe Biden as our next President. While the protestors themselves probably believed that their actions were justified or motivated by conscience, those who occupied the Capitol and participated in the riot that terrorized the nation and caused at least five deaths and many more injuries have been properly branded as criminals and insurrectionists.
But what do their employers think of their actions? And can their employers punish them for their activity?
Major news outlets reported on January 8, 2021 that a number of those individuals who participated in the siege on the Capitol have been identified by their employers and terminated from their jobs for their participation in the violent assembly. (See, https://www.wsj.com/articles/some-ceos-fire-rioters-call-for-president-trumps-removal-from office-11610070410 ). One employee of a Maryland based marketing company was prominently photographed wearing his employee name badge inside the Capitol during the riot. This employee was promptly terminated from his job “for cause.”
While the man wearing his company’s name badge was photographed inside the Capitol during the siege, several other employees were “forced” or at least asked to resign from their positions for their participation in the assembly, although they claimed that they only engaged in peaceful protest outside the building. Its not clear whether those employees would have been fired if they had not resigned.
Do employers have the right to terminate someone who is engaged in peaceful protest? What about not-so-peaceful protest? Why does an employer get to punish an employee for his or her political activity at all? Does the employer’s right to terminate kick in only when there is criminal activity associated with the protest? While many may not agree with the ideology that motivated the insurrection on January 6th, it is important to remember that Gandhi, Martin Luther King Junior and Thoreau also broke laws in the course of their political activism. Regardless of one’s political persuasion, why does an employer get to judge its employee’s political activism and mete out punishment for it?
Recently, the Wall Street Journal reported that employers have wide latitude to limit employee’s speech, both political and otherwise, that might offend other workers or impact the business.(See, https://capclaw.com/wsj-article-is-political-speech-protected-in-the-workplace-heres-what-you-need-to-know-quoting-mark-carey/ ). The general rule is that the First Amendment only prohibits the government from restricting speech not private employers. While government employees have some limited free speech rights outside the workplace (i.e. when the speech is of public concern and not related to the employment), most employers have a great deal of discretion in terminating employees for public activism both in and outside of work. Vaguely worded “employee codes of conduct” and other arbitrary company decrees are used to terminate employees who violate management’s sensibilities. (See, https://capclaw.com/the-employees-field-guide-to-protesting-what-you-need-to-know-before-the-rally/ ). While some states such as Connecticut have passed laws that seek to protect First Amendment rights, if the employer believes that the speech or activity interferes with job performance or the workplace relationships, the speech is not protected.
Where an employee’s political activism involves actual civil disobedience, the law protects an employer’s right to terminate an employee for criminal conduct. While thirty-six states have enacted “Ban the Box” (BTB) laws which prohibit employers from asking about an applicant’s past criminal convictions on a job application, (some 30% of adult Americans have a criminal background of some kind) there is no law prohibiting an employer from conducting a background check after the interview or hiring process and refusing to employ someone with a criminal record. Bottom line: if an employer does not like what you did, they do not have to employ you.
While many may believe that the right to protest publicly and in defiance of laws one thinks are unjust is a right enshrined in the Constitution and the laws of our country, it is important to remember that that right does not include the right to be employed by a company or boss that disagrees with your views. While Americans may still enjoy the right to protest, we do not enjoy a right to be employed while doing so. As long as the law allows the “employment at will” rule to govern the employment relationship, all employees should be cautioned that public political protest often has a steep economic cost. Before you head out to “stick it to the man,” just remember the man can still “stick it to you” in the end.
If you would like more information about this topic, please contact Carey & Associates, P.C. or send an email to firstname.lastname@example.org.
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 email@example.com.
By Chris Avcollie
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.
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. Gorzynski, Supra, 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.
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).
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:
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.
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.
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.
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.
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 firstname.lastname@example.org for help with any suspected age discrimination in your workplace.
By Chris Avcollie
“To be, or not to be, that is the question: Whether ‘tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take Arms against a sea of troubles, And by opposing end them…”
From Hamlet by William Shakespeare Act 3, Sc.1 (Spoken by Hamlet)
During the recent economic “sea of troubles” which followed in the wake of the Coronavirus pandemic, American workers became all too familiar with an employment term which had been rarely used in the past: the employee “furlough.” Companies have furloughed thousands of workers during the past year. With the nation and its workforce now facing a second wave of viral infections, this term is likely to remain in our lexicon during the foreseeable future. So what exactly is a “furlough” and how does it differ from a “layoff” or a “reduction in force?” More importantly, what should employees do when they find themselves “furloughed”? This article attempts to answer some of the more common questions workers have regarding this newly fashionable employment status.
What exactly is a “furlough”? In the employment context a “furlough” (from the Dutch term for “leave of absence”) is an involuntary suspension of employment by an employer. This form of suspension is often undertaken when an employer cannot afford to continue paying some or all of its workers but has reason to expect that circumstance to change in the near future. This form of suspension is almost always without pay and may last as long as the employer’s economic circumstances dictate.
Why do employers use the “furlough” instead of simple “layoffs”? A furlough is a useful cost-saving measure because it allows employers to temporarily cut payroll costs in response to unforeseen economic conditions (think global pandemic) without risking the total loss of its workforce and without incurring the expense of mass terminations and re-hiring. While some industries were able to keep workers employed during the pandemic by allowing them work from home options, others simply had no way to operate other than in person. When those industries were forced to shut down temporarily, the “furlough” allowed employers to cut payroll costs while keeping their workforce on board and ready to resume work upon re-opening.
How exactly does the “furlough” differ from a “layoff” or a “reduction in force?” First, the “furlough” is a temporary suspension in work activity and pay not a permanent change in the employee’s status. The furloughed employees remain “employed” in the sense that they remain in a legal relationship with their employer. Both a “layoff” and a “reduction in force” are generally permanent separations from the employer. A “layoff” is a permanent or semi-permanent separation of employment, usually for economic reasons rather than for cause. A “reduction in force” is a permanent separation of some number of employees as part of an effort to re-structure or to “downsize” the employer’s permanent workforce. While an employer may always re-hire a laid-off or downsized worker, these terms denote a permanent or semi-permanent change in the employee’s status.
So is a furloughed employee guaranteed a right to resume work when the company re-opens? Not exactly. Typically, an employer will give furloughed employees either a specific date of return or set out specific conditions under which their jobs would resume. While furloughed employees have an expectation that they will return to work, there is no guarantee. The employees retain the same right to their positions that they had while actively working. For public sector employees this expectation of return means, for example, that the employee may not be laid-off or otherwise terminated without due process because that right existed during employment. A private sector employee who is an at-will employee has no such right to due process. In other words, a furlough could become a layoff in the private sector with the stroke of a pen.
Do furloughed workers keep their benefits? Usually to some extent. Another unique feature of the “furlough” status is that while wages are suspended along with the employee’s obligation to work, employee benefits are often continued during the furlough period. Employees often retain their health insurance, for example. There are a number of ways this may be handled by employers. Some employers will treat furloughed employees as if they were on unpaid leave and maintain health insurance benefits coverage while continuing to make the employer contributions and requiring the employee to continue premium payments.
Some employers will continue employee benefits through COBRA. COBRA is a federal law that allows employees to continue health insurance after separation from employment. If no continuing health insurance is provided, the employer must provide a COBRA notice in writing to its workers upon being furloughed. Employers could choose to fully or partially subsidize COBRA premium payments or require the employees to pay the premiums themselves. Further, under the Affordable Care Act (“ACA”), covered employers need to be aware of the potential ACA penalties when furloughing their employees. By offering health insurance to furloughed employees, employers may be able to avoid ACA penalties. Furloughed employees should discuss the options for benefit continuation as soon as possible with their managers or HR department.
Can a furloughed worker look for another job? Yes. One of the primary risks of the furlough status for the employer is that top talent might get jobs elsewhere. However, workers who are thinking of taking a temporary position just until they are recalled should consult their primary employer’s policies regarding outside employment or second jobs. An employer is still able to enforce these rules during a furlough because the employee remains, technically, “employed.” Public sector employees, for example, or employees under contract or part of a collective bargaining unit often have strict outside employment prohibitions which must be addressed before working during the furlough.
Can a furloughed worker perform some minor tasks voluntarily during the furlough just to address urgent matters or to keep the in box from overflowing? Absolutely not. Furloughs include a strict no work policy. Under the Fair Labor Standards Act (“FLSA”), employers who allow even minimal work during a furlough incur significant liability. If a salaried employee performs even a few minutes of work during furlough, the employer must pay them the equivalent of their salary for the entire week in which work is performed. If an hourly employee works while on furlough the employer must pay them for the time worked. For this reason, furloughed employees often have access to work accounts and devices revoked to prevent accidental or occasional work during the furlough.
Are furloughed workers eligible to collect unemployment benefits? Usually. A furloughed employee may receive unemployment benefits for their time without pay. Unemployment compensation rules are set by the state not the federal government so rules vary from state to state. Some states impose waiting periods or require the employee to conduct job searches in order to collect. If a furloughed worker receives back pay from the employer for the furlough period, he or she might be required to pay back the unemployment benefits received.
When the company resumes operations do they have to bring back all of the furloughed workers? No. Based on the economic circumstances, the employer may return some or all of its workforce following a furlough. What employers cannot do is select those workers they want to return based on age, race, gender, sexual orientation or other protected class. For example, an employer cannot return the youngest and least experienced and therefore least expensive workers and layoff the older and more experienced workers. Employees should be aware of whether more men are rehired than women, or more white employees are rehired than Asian or African American employees.
When I am on furlough can I use my accrued paid vacation or Paid Time Off (PTO)? Yes. While employers do not have to pay out an employee’s vacation or PTO in a lump sum as if it were a layoff, employees are generally eligible to use their accrued vacation or PTO during the furlough. In fact, if an employer has a written policy in effect at the time of the furlough, it can require workers to use PTO during furloughs. Usually however, these policies are voluntary and not compulsory.
If my furlough becomes a layoff, am I entitled to some type of severance pay? Not usually. Employees are generally entitled to the same severance benefits after a furlough that they otherwise would have been if they had been laid off initially. In most cases employees are not entitled to any severance. If however, an employer offers severance benefits under an ERISA based severance plan, workers will be entitled to that severance if they are laid off following a furlough. Again, employers may not select which employees are laid off based on protected classes or illegal retaliation. Like all adverse employment actions, laying off employees after a furlough must be done without regard to race, gender, age, disability, or other protected characteristics.
Conclusion: While the employee furlough provides a seamless and cost-effective way for organizations to reduce payroll expenses while maintaining a ready and engaged workforce during uncertain economic times, this arrangement creates an ambiguous status for the employee. While it may be better to be furloughed than laid off, employees need to be certain they understand the parameters of this unusual employment status in order to protect their rights. If the Coronavirus economy is going to subject you to the “…slings and arrows of outrageous fortune,” be sure to arm yourself with information before you wade into the “sea of troubles…”
As always, the employment attorneys at Carey & Associates, P.C. are ready to help. Please call (203) 255-4150 or email to email@example.com.
By Chris Avcollie
“In science, computing, and engineering, a ‘black box’ is a device, system or object which can be viewed in terms of its inputs and outputs…without any knowledge of its internal workings. Its implementation is ‘opaque’ ([i.e.] black). Almost anything might be referred to as a black box: a transistor, an engine, an algorithm, the human brain, an institution or government.” (https://en.wikipedia.org/wiki/Black_box).
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?
Let’s see if we can figure out what is going on inside the black box. As with all black box analysis we are going to examine the “inputs” and “outputs” to determine what unseen principle or byzantine process is going on inside the box itself. The “inputs” will be specific request for accommodation scenarios and the “outputs” will be the Equal Employment Opportunity Commission’s (“EEOC”) guidelines and recommendations for ADA requests for accommodation during Coivid-19.
First, let’s look at the box itself. The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, “reasonable accommodations” are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an “undue hardship,” on the employer. “Undue hardship” means “significant difficulty or expense.” That is the basic reasonable accommodation rule under the ADA.
An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? The not so simple answer is: “Through the ‘interactive process.’” We have now entered the black box.
The “interactive process”, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee and the employer responds. Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an on-going process. Let’s look at some “inputs” and “outputs” to see how the “interactive process” works:
› If my job requires me to be on-site and I have a preexisting medical condition that makes me especially vulnerable to Covid-19, am I entitled to reasonable accommodations under the ADA?
Possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA you might not be entitled to accommodation even if you are at higher risk. The ADA defines a “disability” as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” When requesting an accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include but are not limited to: heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. In this example, the employer would begin the interactive process by asking questions and/or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process will likely end with a denial. If the condition is in fact an ADA disability then the interactive process continues with an exploration of the accommodations possible and available.
› If my job is on-site and I have a preexisting medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19, how do I know what accommodations I can get?
The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of her position (that is, the fundamental job duties). Some recommended Covid-19 accommodations to reduce exposure include without limitation: changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers; providing personal protective equipment (PPE); temporary job restructuring of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.
› Can my employer just say that my requested accommodations pose an “undue hardship,” and not engage in any sort of process?
The employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually “discuss” the accommodations with the employee. If a particular requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.( In discussing accommodation requests, the EEOC recommends that employers and employees consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.) The discussion of proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
- the impact of the accommodation on the operation of the facility.
If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted.
› When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly?
“Undue hardship” is determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost-impact of a requested accommodation on the organization but must also determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee.
› Besides providing many new reasons for needing accommodations, how does Covid-19 affect the interactive process with my employer, if at all?
The interactive process is largely about assessing the relative burden of a particular accommodation on the employer’s operation. Therefore it makes sense that the financial, economic, and situational conditions affecting the workplace due to Covid-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by Covid-19. Further, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items. Covid-19 could cause “excusable delays” in the interactive process. The loss of some or all of an employer’s income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to Covid-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workable accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found to assist those struggling to work during Covid-19.
› If I have a family member who has a medical condition (which is an ADA disability) that makes him/her especially vulnerable to Covid-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member?
No. While the ADA does prohibit discrimination based on one’s association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses. While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the federal Families First Coronavirus Response Act. If an employee’s close family member has Covid-19, the FMLA could provide leave to care for that family member.
› If I have a medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19 and my employer allowed me (and others) to work remotely for a period of time, does my employer automatically have to grant me telework as a reasonable accommodation when the company returns to on-site work?
Not necessarily. Whenever an accommodation is requested the employer can engage in the interactive process and determine whether there is a disability related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employee’s disability does not cause a limitation that will be relieved by telework, then it need not be granted. Further, if the employee’s disability related limitation can be addressed with another accommodation then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function even if it did so voluntarily for a period of time out of necessity. The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability related limitation would be removed by telework and all essential functions of the employee’s job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements. The interactive process must be flexible, cooperative, and truly interactive to determine what accommodations will work for employer and employee.
Based on our “black box” analysis here, it seems that the “unseen mechanism” that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of Covid-19, obtaining the right output from the “black box” that is the ADA interactive process requires a lot of input from all involved.
If you or someone you know needs advice or assistance in navigating a request for accommodation, please contact us at firstname.lastname@example.org or call 203-255-4150 and speak to one of the employment lawyers at Carey & Associates, P.C.
 All of the substantive information contained herein is derived from the EEOC website at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
By: Chris Avcollie
Its Monday morning and you are on your way into work. Although the traffic is not bad, your stress levels are already through the roof. As you near the exit, you notice you are gripping the steering wheel to the point where your hands are hurting and your teeth are clenched. As the employee parking area comes into view your stomach tightens and your heart begins to race…If this scenario sounds all too familiar, you might be the victim of workplace bullying.
What is workplace bullying? Workplace bullying may be defined as a range of workplace behaviors characterized by repeated mistreatment of an employee by one or more employees including abusive conduct that is: threatening, humiliating, or intimidating, work sabotage, or verbal abuse. Workplace bullying may include directly aggressive actions or insults as well as unwelcome jokes, pranks, or ridicule. Workplace bullies often target particular individuals, seeking to harm or intimidate those whom they perceive as vulnerable in some way.
Workplace bullying can include but is not limited to some or all of the following actions:
› Aggressive communication including yelling, angry emails, and other verbal hostility;
› Aggressive body language or “cornering”;
› Constant criticism – humiliating disparagement that causes you to doubt your abilities;
› Criticizing you for things you did not know or about which had no instructions;
› Tasteless and humiliating jokes or pranks;
› Manipulating and withholding resources i.e. instructions, information, time, or help from others—setting you up to fail;
› Excessive, unwarranted, and aggressive supervision;
› Assigning unreasonable amounts of work which cannot be reasonably completed on-time; and
› Secretly undermining you and disparaging you behind your back.
According to the Workplace Bullying Institute (“WBI”) (https://workplacebullying.org/) nineteen percent (19%) of adult Americans experience workplace bullying. That means that some sixty point three (60.3) million workers are affected by this type of misconduct. Sixty-five percent (65%) of the people bullied at work are women and seventy percent (70%) of the perpetrators are men. Approximately sixty one percent (61%) of bullying is committed by a supervisor or boss. In 2019 a Monster.com survey revealed that nearly ninety-four percent (94%) of responding employees reported being bullied in the workplace. These statistics are shocking when one considers that there is no federal law and few state laws prohibiting or even acknowledging bullying in the American workplace.
While lawmakers are ignoring the problem, both workers and employers should take notice. Both the economic and emotional costs of workplace bullying are high. For the targets of bullying the impact often includes damage to their physical and emotional health as well as their career. Targets suffer major stress, anxiety, depression, trauma, high blood pressure, gastrointestinal issues, and more. Targets often face job loss, transfer, and demotion as well as other adverse workplace impacts. For employers, workplace bullying results in low morale, increased HR complaints, higher turnover, increased absenteeism, and higher employee health care costs.
A study by the WBI found that thirty-seven percent (37%) of bullying targets were terminated, while thirty-three percent (33%) quit their jobs and seventeen percent (17%) were transferred from their positions or departments. The bullies were punished only four percent (4%) of the time, and only transferred in nine percent (9%) of cases.
Since most states and US territories (with the recent exception of Puerto Rico) have failed to enact anti-workplace-bullying statutes, most workers have few legal options if their workplace becomes unbearable due to the aggressive and intimidating conduct of a boss or co-worker. Some employers have tried to address the problem by enacting codes of conduct and civility guidelines. These are often included in employee policy manuals. While these policies may be useful in addressing workplace bullying issues, they are only as effective as the people enforcing them. Addressing bullying by employers is especially challenging given that most American workers are “at will” employees facing immediate termination without any just-cause requirement. If the boss is also the bully, how often will those policies be enforced?
How does “Workplace Bullying” differ from “Illegal Harassment”? Harassment, according to American employment law is essentially legal, unless it is motivated by an illegal purpose such as retaliation for protected activity (such as labor organizing or whistleblowing) or discrimination based on a protected class (such as sex, gender identity, race, religion, national origin, etc.) If the harasser targets someone based solely on the bully’s desire for cruelty, almost anything goes short of an actual physical assault.
Many employers as well as business lobbying groups who fight anti-workplace bullying statutes justify abusive bosses as simply an aggressive “management style.” The idea is that psychological violence is justified if its in the service of productivity. Aside from the fact that workplace bullying is costly for employers, this type of “management style” reflects a serious lack of management training and is not an effective substitute for it.
What to do if you think you are being bullied at work? Here are 6 Steps to Address Workplace Bullying:
- Assess – First, evaluate your situation to determine whether you are the target of bullying or just an isolated incident or some other form of misconduct. What is the frequency of the behavior? Is it becoming more common over time? What is the nature of it? Does it have a gender or racial component or is it simply aggressive? If it is increasingly frequent you may be a target. Try to spot a pattern of behavior.
- Document– Immediately document any incident that may be part of the pattern of behavior you identified. Write down details of incidents or meetings where the aggressive behavior took place. Who was present? When was the meeting? Was the behavior addressed by anyone? File away emails and other communications around the bullying behavior and about your own performance. Often bullies retaliate by making the issue about the target’s performance. Be sure you can show that you were acting appropriately and doing your job. When it comes time to report the behavior you will want to have all of those details at the ready.
- Research-While bullying is not currently illegal, your company may have codes of conduct, HR policies or anti-harassment provisions which cover this type of behavior. If you need to report the bully, it is useful to know if he or she has violated company policies.
- Report– If the behavior is recurring then report the bully to HR or to your supervisor (providing your supervisor is not the bully!) Document the response and request a formal report and investigation.
- Seek Medical Help– If the behavior is emotionally impactful seek psychological help. Psychologists or Counselors who are experienced in trauma are best equipped to help with workplace bullying issues.
- Get Legal Advice– Immediately consult with an experienced employment attorney. You may be the target of bullying or even illegal and discriminatory harassment. Let a trained attorney advise you during this difficult ordeal.
For years our Courts have quoted the late Supreme Court Justice Antonin Scalia who famously warned against interpreting federal anti-discrimination law under Title VII as a “general civility code for the American workplace.” Id. While Justice Scalia is no doubt correct that Title VII was not intended to serve as a “general civility code,” those who suffer daily under the yoke of an aggressive workplace bully want to know: “When are they going to enact one?”
If you are the target of a workplace bully you need not suffer in silence. While the law has been slow to address the issue a skilled employment lawyer can help you navigate this difficult situation.
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 email@example.com.