Articles Posted in Age Discrimination

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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.

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This week the Maine Human Rights Commission (MHRC), in Augusta, unanimously found reasonable grounds to believe that Tambrands discriminated against an East Dixfield man, Allen Ackley, when it asked him questions during its hiring process that required him to reveal his age.  Mr. Ackley reportedly applied for a plant technician job with Tambrands, which is a part of Procter & Gamble Co.  During the hiring process, the company asked Mr. Ackley, who was 59 at the time, for the dates when he graduated from educational institutions and required him to complete a form that called for his date of birth.

The MHRC has established guidance, readily available on its website, which states that employers may not ask for this type of information, which reveals an applicant’s age, during the hiring process.  The guidance, called a “Pre-Employment Inquiry Guide,” says that employers may ask applicants if they are under 18 years old but other than that, “questions about date of birth or age” are prohibited.  Employers also may not ask for applicants’ “dates of graduation from educational institutions.”  This guidance relates to a provision of the Maine Human Rights Act which states that employers may not “prior to employment…elicit or attempt to elicit information directly or indirectly pertaining to…age.”

There is no indication that Mr. Ackley went through an atypical hiring process at Tambrands.  Consequently, Tambrands may routinely violate this portion of the Maine Human Rights Act when it screens applicants for hire.  Now that the MHRC has found reasonable grounds to believe that Tambrands violated the Maine Human Rights Act, it will attempt to settle the dispute between Tambrands and Mr. Ackley through a process called conciliation.  As part of that conciliation process, it is possible that the MHRC will request that Tambrands change its hiring process so that it conforms to the requirements of the Maine Human Rights Act.

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A federal court in Puerto Rico, incredibly, held that no reasonable person could find that this statement showed that the employer fired her employee because of his age.  As such, the Puerto Rico court, using a procedure called “summary judgment,” dismissed the case without letting a jury decide whether age discrimination had occurred.  Today, the First Circuit Court of Appeals in Boston reversed that court’s decision in Soto-Feliciano v. Villa Cofresi Hotels, Inc. et al.

After over a decade of working for the Villa Cofresi Hotel as a chef, the hotel fired Mr. Soto on March 10, 2010.  Less than a month before his termination, Mr. Soto had a meeting with Sandra Caro, the hotel’s head of human resources and member of the family that owned the hotel.  During this meeting, Mr. Soto claims that Ms. Caro said the following to him: “You are no longer capable to work at the line because you are old.  I am going to bring in a new chef.  Maybe I can let you work only in banquets.  You need some long vacations because you are old and slow at the line.  We at the Hotel Villa Cofresi are moving up, not down.”

If Ms. Caro made this statement, a reasonable person could definitely conclude that Ms. Caro factored Mr. Soto’s age into her decision when she made the decision to fire him less than a month later.  However, this statement was not the only evidence of age discrimination that Mr. Soto’s attorney presented to the Puerto Rico federal court.  In addition to Ms. Caro’s statement, Mr. Soto testified that his direct supervisor repeatedly told him that he was “too old” and “too slow.”  Mr. Soto’s attorney also presented evidence that the hotel’s supposed reason for firing Mr. Soto—that he made profane and disrespectful comments to other employees—was just a pretext, or excuse, for discrimination.

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Last month, the U.S. District Court in New Hampshire ruled that a reasonable jury could determine that Northeast Utilities Service Company (NUSCO) discriminated against former employee Judith Janusz because of her age.  In particular, the court found that a reasonable jury could conclude that NUSCO subjected Janusz to an unlawful age-based hostile work environment and fired her because of her age.

Janusz began working for Public Service Company of New Hampshire (PSNH) in 1996 as a customer service representative.  She, along with all of PSNH’s other call center employees, began to work for NUSCO in 2007.  When NUSCO fired Janusz in 2010, she was in her early 60’s.

Janusz says that she started to hear people make ageist comments about her after she came under the supervision of Lori Levesque in or around 2005.  She claims that Levesque and another supervisor, David Slater, would say things to her like “are you going senile,” “I can’t believe at your age you work all these hours,” and “for someone your age, you do a lot.”  According to Janusz, if she hesitated to answer a question, Slater and another supervisor, Gary Cronin, would say things like “tough to get old.”

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IBM recently discontinued its longstanding practice of including in its severance packages a disclosure of the ages and job titles of the other employees it had decided to lay off.  IBM made these disclosures in order to comply with the Older Workers Benefit Protection Act (OWBPA).  29 U.S.C. sec. 626(f).  It has now decided to comply with the OWBPA in a different way: requiring laid off workers who accept severance packages to pursue age discrimination claims in arbitration, instead of court.

IBM has been no stranger to age discrimination lawsuits. Several years ago, it faced a class action age discrimination lawsuit which alleged that it discriminated against older workers when it instituted layoffs.  More recently, a single plaintiff prevailed in an age discrimination lawsuit against IBM and received a verdict of about $2.5 million.

Arbitration is an “alternative dispute resolution” process where a privately hired arbitrator, usually a lawyer, presides over the trial and decides which party should win.  Instead of a jury, the arbitrator decides both whether the defendant broke the law and how much money to award to a successful plaintiff.  Many corporations have chosen to compel their employees to agree to arbitration because the corporations enjoy built-in advantages in arbitration that they do not enjoy in court.  Because of these built-in advantages, many of these corporations require all employees to agree, as a condition of their employment, to pursue any claims against the corporation through arbitration.