Articles Posted in Age Discrimination

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This week Lincoln County Administrator Carrie Kipfer informed County Commissioners of a change to the rules for the Maine Public Employee Retirement System (PERS) that would require it to treat retirees that it employed differently than non-retirees.  Ms. Kipfer expressed concern that this rule change could result in age discrimination.  Under this PERS rule (Ch. 803 sec. 14), a retiree who is receiving PERS benefits that returns to work for an employer that participates in PERS must either stop receiving benefits or incur a greater PERS deduction from her pay than non-retirees who work for the employer.

“There are great benefits to hiring people who have experience,” said Ms. Kipfer. “This is unfair to them, because they’ve already paid their dues and won’t be getting anything else from the system.”  To illustrate her point, Ms. Kipfer cited the example of a retired deputy sheriff that the county had rehired a few years ago.  This deputy sheriff no longer works for the county but if he did, this new rule would discourage him from working.

This new PERS rule follows a contentious debate in the legislature earlier this year when lawmakers debated whether to prohibit retirees from collecting pension benefits if they returned to work for an employer in PERS.  Under existing law, there are already limitations on retirees’ ability to return to work.  Retirees can only return to work for a limited number of years and there are limitations on how much they can be paid.  The proposed legislation to prohibit retirees from returning to work was not passed during the last legislative session.

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Earlier this month, the U.S. First Circuit Court of Appeals held that a trial court in Puerto Rico erred when it determined that a worker failed to present sufficient evidence to support her claims of ageist harassment and retaliation.  The trial court had thrown the worker’s case out because the trial judge did not think a jury could reasonably find that the company had violated the worker’s rights.  The First Circuit found that the trial court inappropriately prevented this case from going to trial.

The worker presented evidence to the trial court that her managers called her “vieja,” which means old in Spanish; “useless;” “worthless;” that she should apply for social security; and that she should quit because she was so old.  She told the trial court that this happened on a daily, or near daily, basis for over a year.  The trial court held that the worker failed to present specific enough information for a jury to find in her favor because she did not provide specific information about each instance during the period she was harassed, such as which person made comments on each particular date.  The First Circuit rejected the trial court’s reasoning, holding that it “would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail.”

The First Circuit also reversed the trial court’s decision to dismiss the worker’s claims of retaliation and “constructive discharge.”  After the worker complained to the U.S. Equal Employment Opportunity Commission (EEOC) and a similar agency in Puerto Rico about the harassment, one of the company’s owners began to threaten to fire her because she had filed her complaint.  The worker said that these threats occurred on almost a daily basis.  She wound up taking medical leave because of the depression and anxiety these threats caused.  When she returned, the threats continued until she eventually quit.

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Last week, a federal judge held that a jury could reasonably find that Hannaford fired one of the Maine Employee Rights Group’s (MERG) clients because of his age, disabilities, and need for medical leave.  MERG’s client worked for Hannaford for over thirty years and served as the Produce Manager at the Waldoboro Hannaford store when Hannaford fired him.  At the time of his termination, he was 58 years old; suffered from heart disease, knee and back impairments, and a shoulder injury; and had repeatedly needed medical leaves due to his medical conditions.  Hannaford fired MERG’s client on the day he returned from a medical leave.

Before MERG’s client went out on medical leave, the Waldoboro store was planning to undergo a major remodel and expansion which would increase both the sales volume of the store and the stress on the store’s employees.  The store manager asked MERG’s client whether he could “handle” the stress associated with the expansion but there was evidence that he did not ask other managers in the store—who were younger and not disabled—this same question.

While MERG’s client was out on medical leave, Hannaford claims it received information indicating that MERG’s client was not complying with food safety policies relating to the preparation of cut fruit.  Hannaford launched a food safety investigation and the store manager and an associate relations manager met with MERG’s client in connection with that investigation on the day he returned from medical leave.  During this meeting, the store manager claims MERG’s client admitted that he knowingly violated food safety policy and that is why Hannaford claims it fired him.  MERG’s client denies that he admitted to violating policy and says that no one even asked him if he thought he was violating food safety policy.

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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Maine Senator Susan Collins, and one of her colleagues in the Senate, recently sent a letter to Facebook, Google, and Linkedin expressing concern about job advertisements that target only workers in certain age groups. This is the same issue that we discussed last week because there is a class action lawsuit against companies that have been posting these job advertisements.

“By targeting employment advertisements to specific age groups, certain users may be denied the ability to view job opportunities. We write today to express our concerns related to such targeting and to inquire as to the use of age-based advertising tools in hiring practices,” said Senator Collins in her letter. The letter asked the companies to provide her with certain information by January 31, 2018, which will help her to better understand the issue.

Targeting certain demographic groups with social media job advertisements is an interesting issue. Of course, a company can use this ability to target demographic groups for discriminatory reasons, seeking to exclude certain groups of people from its work force. However, some employers may want to use this same technology to target certain demographic groups that are under represented in their companies.

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student-849825_1920-300x200T-Mobile, Amazon, Cox Communications, Facebook and many other companies are defending a new class action lawsuit which alleges that they have engaged in systemic age discrimination by targeting younger workers with Facebook job advertising. The lawsuit seeks relief for millions of older workers who are excluded from this advertising.

These companies have allegedly used Facebook’s targeted advertising system to show job ads to Facebook users based on their ages. The lawsuit alleges that Facebook actually requires companies to select the age range of the people who will see the ad in their Facebook news feed.

The lawsuit includes examples of job ads which say that the person viewing it was targeted because of their age. For example, there is an advertisement for a position with Cox Media Group which says that the viewer is seeing the ad, in part, because they are between the ages of 20 and 45.

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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.