Articles Posted in Age Discrimination

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application-1883453_1920-300x200Have you ever seen a job posting for a position where the employer only wanted applicants with little or no experience? Companies that look for applicants with little or no experience do so, in some instances, because they believe that applicants with relatively little experience will command a lower salary than applicants with more experience. Because experience usually comes with age, a company’s practice of hiring applicants with little or no experience has a disparate impact on older workers. And this type of disparate impact could be unlawful age discrimination.

“Disparate impact” cases involve employment practices that, on their face, do not discriminate on the basis of a protected category but that, nevertheless, operate in a way that negatively affects a protected group. In Maine, if a company engages in employment practices that have a large enough disparate impact on a protected group, such as older workers, the company can be liable for discrimination if it cannot prove that the practice is “job related and consistent with business necessity.”

In the context of hiring practices, this “job related and consistent with business necessity” standard requires the company to prove that the criteria it uses to select job applicants for hire meaningfully distinguish between well qualified and poorly qualified applicants. If the company can meet this “job related and consistent with business necessity” standard, it could still be liable for discrimination if the applicant could show that there were alternate hiring criteria that would have served the company’s needs just as well but had less disparate impact against the protected group.

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Earlier this month in New Jersey, a federal jury found that Lockheed Martin had discriminated against one of its employees because of his age and awarded that employee $51.5 million. Reports about the case indicate that the jury heard evidence that Lockheed Martin had a practice of laying off older workers while at the same time recruiting and hiring younger workers.

The plaintiff in this case, Robert Braden, was the oldest of six employees who reported to the same manager and he was the one chosen for layoff. The company gave Braden no reason for his lay off and did not use any objective criteria to make the layoff decision. Braden was 66 years old at the time of the layoff. The other four employees that the company chose for layoff from Braden’s facility were all older than 50.

The jury awarded Braden $520,000 in back pay which was doubled under the federal Age Discrimination in Employment Act (ADEA). The jury also awarded Braden $520,000 for emotional distress under New Jersey state law. Also under New Jersey state law, the jury decided to make Lockheed Martin pay Braden $50 million in punitive damages.

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Recently, there have been articles written about how millennials face employment discrimination because of their age. Some examples are here, here, and here. Millennials face discriminatory stereotypes such as that they are unpredictable or do not have a strong work ethic. Employers who engage in this sort of discrimination are certainly shooting themselves in the foot because there is a lot of research which shows that diverse workforces, including employees of diverse ages, improve an organization’s performance. Diverse teams are better at solving problems than non-diverse teams.

These articles all raise the problem that federal law does not prohibit discrimination against workers because they are young. The federal age discrimination law only protects workers aged 40 or above from age discrimination. Maine law, however, prohibits all forms of age discrimination—even discrimination against workers because they are young.

Even though Maine law prohibits age discrimination against younger workers, it can be difficult to determine whether an employer has discriminated against a worker because she is young or because she lacks relevant experience. There are, however, ways around this issue. For example, if an employer requires applicants to have decades of experience for a position that does not actually require such a high level of experience, that could be a sign that the employer is trying to exclude applicants because of they are young. Furthermore, managers will sometimes make statements that reveal their bias.  This is because discriminatory attitudes about millennials, as compared to discriminatory attitudes about race or gender, are relatively socially acceptable to many people.

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The Washington Post Magazine recently ran an interesting story about the prevalence of ageism in the workplace.  As the baby boomer generation ages, the problem of age discrimination is going to be more and more common.  Unfortunately, age discrimination remains one of the more socially acceptable forms of discrimination in our society.  Todd Nelson, a psychology professor quoted in the article, pointed to greeting cards as indicative of this social acceptability of ageism.  If you shop for birthday cards, you’ll see many that talk about how getting older is something to be ashamed of or that people would want to hide.  You don’t see such attitudes publicly expressed about race, sex, or religion.  A card that said “’ha ha, too bad you’re Jewish’ …wouldn’t go over so well,” Nelson noted.

Older workers face deeply ingrained pernicious stereotypes about their ability as workers.  Many employers hold stereotypical views that older workers are unable to learn new technologies (“you can’t teach an old dog new tricks”), unable to take direction from younger supervisors, and can’t get invested in the job because they are just thinking about retirement.  Many employers also assume that older workers will be prone to filing workers compensation claims due to on-the-job injuries.

If you are an older worker, you probably already know that you need to guard against ageism.  And if you don’t know that you need to do that, consider yourself warned.  There are laws against age discrimination but you need to stay alert to the signs of discrimination in order to detect it.  For example, if your employer is laying you off, try to find out the ages of the other people being laid off to see if, perhaps not so coincidentally, the younger workers are being spared the axe.  In some instances where employers offer you a severance package, the Older Workers Benefits Protection Act requires the employer to tell you the ages of the people who were laid off and not laid off so that you can see whether the employer targeted older workers.

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In Maine, like many other states, there is a growing concern about a “brain drain” caused by retiring state employees.  Roughly a quarter of IT workers working for Maine state government will be eligible for retirement in the next two years.  According to Jim Smith, Maine’s Chief Information Officer, “about 3,000 years of experience is going to be walking out the door.  It’s going to be transformational. We’re going to need to do something radical to address this change.”

The State of Maine has been trying to stem the tide of retirements while at the same time recruiting new IT workers to take the places of retiring workers.  One thing they have done to stem the tide of retirements is to permit part-time work so that older workers can reduce their hours instead of just retiring.  To attract new employees, the state has made applying for positions easier with a new app.  It has also used an intern-mentor program to partner potential hires with veteran employees.

Maine’s efforts to retain older workers is particularly interesting given what we have seen in the private IT sector.  As we have reported in the past, there is a perception that private IT employers have an ageist bias toward younger workers.  For example, some look for so-called “digital natives” when they hire.  In the private IT sector, turnover is relatively high.  Given this reality, private companies are likely less concerned with retaining experience than with attracting new talent.

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A recent study published by the National Bureau for Economic Research finds that employers discriminate against older women at higher rates than older men. The researchers sent out about 40,000 fake resumes to employers and tracked how the employers responded to the resumes. They found that women aged 64-66 got calls from employers 12% of the time and women aged 29-31 got calls from employers 19% of the time, a statistically significant difference. Interestingly, with the exception of janitorial jobs, older men got calls from employers at approximately the same rate as younger men.

This fake resume study method is the same method that researchers have used in other studies. The method is considered more reliable than observing how employers treat real people because the researchers can ensure that the fake applicants have the same qualifications which is difficult to do when you study treatment of real people who each have their own unique qualifications.

After finding these gender disparities in age discrimination, the researchers pondered what drove the gender disparities. One of the researchers thought the gender disparity might be due to societal views on the attractiveness of older men as opposed to older women. “There is some evidence that people’s rating of attractiveness diminishes more quickly for older women than older men,” said the researcher.

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This week a federal court in Massachusetts ruled against Areva, Inc. in an age discrimination case. The court held that a reasonable jury could determine that Areva laid off Farrokh Seifaee because of his age. Seifaee was 61 years old at the time of his termination in October 2013.

Seifaee worked for Areva as an engineer and had worked for the company, and its corporate predecessors, for 25 years at the time of his termination. Areva terminated Seifaee as part of a reduction in force (RIF) that it instituted to save money because of the company’s financial problems. To decide who Areva wanted to lay off, the company rated employees based on criteria such as current and past evaluations of each employee and the employee’s critical or unique skills. Based on these criteria, Areva ranked Seifaee 130th on the list of 136 employees considered for layoff. Areva laid off 14 employees, including Seifaee. Of the 14 employees laid off, all were older than 55 and 12 were older that 60.

Seifaee’s lawyer presented the opinion of an expert who performed a statistical analysis on Areva’s layoff. The expert found that the statistical disparity in the RIF “clearly supports a claim of age bias.” Seifaee’s lawyer also presented, among other things, evidence that Areva retained employees younger than him who had performance problems and less unique skills and experience than him.

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It has been reported that the Maine Human Rights Commission will hear a case today against Lowe’s Home Improvement. Robert Hack of Greene filed the case against Lowe’s because he believed the company refused to hire him because of his age.  Mr. Hack unsuccessfully applied for jobs at Lowe’s stores in Auburn and Augusta.  The stores refused to hire him even though he had past experience working for Lowe’s. The MHRC investigator who investigated the case has reportedly found that Lowe’s discriminated against Mr. Hack because of his age and that the company asked Mr. Hack improper questions about his age during the hiring process.

Mr. Hack claims that, when he applied, Lowe’s asked him for the dates that he graduated from educational institutions. We previously wrote about a case against Tambrands where that company did essentially the same thing that Lowe’s allegedly did. In Maine, it is illegal for an employer to ask applicants for the dates in which they graduated from high school or other educational institutions. These graduation dates signal how old the applicant is and under the Maine Human Rights Act employers may not “elicit or attempt to elicit information directly or indirectly pertaining to…age.”

The MHRC has clear guidance on its website for employers which tells them that they cannot ask applicants for the dates when they graduated from educational institutions. Given that Tambrands and Lowe’s have both, apparently, violated this rule, it would not be surprising if other employers also violate it.

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Fortune Magazine recently ran an article that explored a trend in the tech industry of job postings that say the companies prefer applicants who are “digital natives.” Education consultant Marc Prensky coined the term “digital native” in an article that he published in 2001 called Digital Natives, Digital Immigrants. What people mean when they use the term “digital native” is ambiguous but, essentially, it seems to refer to a person who has been immersed in digital technology for a large portion of her life.

Since digital technology only first started to become commonplace in the 1990s, employers are probably less likely to believe that people born in the 1950s, 60s, or 70s are digital natives. Thus, some argue that when an employer says it wants to hire a digital native, the employer is implicitly signaling that it does not want to hire older workers.

The federal Age Discrimination in Employment Act (ADEA) and the Maine Human Rights Act (MHRA) both prohibit age discrimination. Would an employer’s use of the term “digital native” in a job posting be enough evidence to prove that it discriminated against older applicants in violation of the ADEA or MHRA? As the Fortune article indicates, many employment law experts are uneasy with the term digital native but they do not think an older worker could prevail in a lawsuit with that sole piece of evidence. However, if you are an older worker who unsuccessfully applied for a job where the employer said that it wanted a “digital native,” you should seriously consider contacting an experienced employment lawyer to determine whether it would be worthwhile to further explore whether there is other evidence of age discrimination.

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Earlier this month, a 64-year-old tech worker, Robert Heath, filed an age discrimination lawsuit against Google. In the lawsuit, filed in California, Heath claims that Google refused to hire him because of his age. The attorneys who filed the lawsuit seek to represent a class of older workers as well.

Heath has a college degree in computer science and has worked for IBM, Compaq, and General Dynamics. He claims that, after he applied for a programmer position, he received an email from a Google recruiter who said that, with his experience, Heath would be a “great candidate” to work for Google. However, when it came time for Heath’s interview, which Google conducted over the phone, the interviewer was ten minutes late, refused to take his phone off speakerphone so that he could better communicate with Heath, and was barely fluent in English. After the interview, Heath did not get the job.

Heath’s lawsuit cites statistics to support his claim of age discrimination based on data obtained from Payscale.com. 840 Google employees self-reported their ages to Payscale.com and, according to that data, the median age of Google employees in 2013 was 29. The median age for all computer programmers in the United States is 43.