Articles Posted in Age (ADEA)

Today’s post is about another recent employment-law decision from the Third Circuit.  For those of you who want the shortened version, feel free to skip to the end of the post for the valuable Lesson Learned.


The plaintiff-employee, Mary Burton, founded and ran two companies, which were sold to the defendant-employer, Teleflex. Following the sale, Burton became employed by Teleflex pursuant to a written employment agreement.  Burton was 67 years old.3d businessman quits_3

From the start, Burton did not get along with her new supervisor, Edward Boarini. Their relationship was already strained when Boarini told Burton that he wanted to meet with her to discuss her performance. At a trade show, Burton asked Boarini when he wanted to meet. When he couldn’t give her an immediate answer, Burton responded by asking whether he wanted her to resign. He said that he did not but she repeated the question several times.

By the end of the conversation, Boarini believed that Burton had resigned. Burton, on the other hand, felt that she’d been fired.

Following a previously scheduled vacation, Burton received a letter from Teleflex’s HR Department, “accept[ing] her resignation.”  Despite being “in disbelief” about the letter, Burton did not call Teleflex or attempt to return to work. Instead, she called her lawyer, who attempted, unsuccessfully, to negotiate a separation agreement.

The Claims

Burton filed suit, alleging that she had been fired because of her age in violation of the ADEA. Teleflex claimed that Burton had not been fired but had resigned and, therefore, Burton had not been subject to any adverse action.  The trial court, the Eastern District of Pennsylvania, granted summary judgment to Teleflex, finding that Burton had resigned and that, even if she had not, there was no evidence that its letter was a mere pretext.  The Third Circuit reversed, finding that there “clearly” was a dispute of material fact as to whether Burton resigned or was terminated.

Lesson Learned

Instead of discussing the intricacies of the Third Circuit’s holding (i.e., whether there is sufficient evidence that Burton resigned) I think there is a more immediate lesson to be learned from this case:

Being a manager is tough.  Deal with it.

Or, to put it differently:

There are serious and costly consequences for employing managers who are conflict adverse.

I certainly understand Boarini’s desire to interpret Burton’s comments as a resignation.  But she didn’t come right out and say it, she didn’t call later and confirm it, and she didn’t submit a resignation letter (even though she was required to do so pursuant to her employment contract). Just because you want to hear her say she’s quitting doesn’t mean that is what she actually said.

The right way to handle this would have been to meet with Burton and address the performance issues that she’d been having. Just pick a time, set the meeting, and deal with it. Don’t wait for her to come to you to schedule a time. And, when she does, don’t say you’re too busy or be reluctant to commit to a time.

And then, when you have the little spat and she says, “Do you want me resign? Is that what you want,” understand that the conversation is not over. Be the manager. Tell her that she can calm down and collect her thoughts and that you will discuss the situation on Monday morning, 10 a.m., in your office.

Don’t close your eyes and hope the whole mess just disappears. It won’t. Being a manager is no easy business. But you can handle it-that’s why they gave you the job. So toughen up and deal with it head on.

(PDF) No. 11-3752 (3d Cir. Feb. 21, 2013).

See also

3d Cir. Issues a Bitchin’ Constructive-Discharge Decision

3d Cir. Confirms EEOC’s Broad Subpoena Power

3d Cir. Decides Certification Standard for FLSA Class Claims

3d Cir. Finds Individual Supervisor Liable Under FMLA

3d Cir. Employees Fired for Pornographic Emails Lose Age-Discrimination Case

3d Cir. No Protection for an Employee Who Lies

I went to my second Bob Dylan concert tonight. Dylan, 71, put on a good show. A good show–but not a great show. By the end of the night, it seemed that most of the wind was out of his sails. I left the show asking myself, “How do you know when it’s time to quit?” I think this is a tough question for anyone who loves what they do and really hard for anyone who is great at what they do.

The same question could be asked about lawyers and judges. Six Pennsylvania judges have taken the question to the State’s supreme court, where they’ve filed a lawsuit alleging their constitutional rights are being violated by a provision in the State constitution that mandates the retirement of all state-court judges before they turn 71.

A similar provision in Missouri was upheld by the U.S. Supreme Court in 1990 but the PA judges hope that changes in the way the Court interprets the 14th Amendment’s Equal Protection Clause and what science says about the effects of aging. Currently, 33 states and the District of Columbia impose age restrictions on judges.

EEOC was awarded summary judgment by a federal court in Maryland last week. The court found that Baltimore County’s pension plan violates the ADEA in EEOC v. Baltimore County, Civil No. L-07-2500-BEL (D. Md. Oct. 17, 2012).

The Plan
All full-time employees under age 59 were required to participate in the Plan. Employees were required to contribute to the Plan at different rates based on the age at which they joined, so that the contribution would be sufficient to fund approximately one-half of his or her final retirement benefit, with the other half to be funded by the County. Older workers were required to contribute a higher percentage of their salary than younger workers because their contributions would have less time before retirement to accrue earnings. For example, a laborer who became a member of the Plan at age 25 was required to contribute 2.75%, whereas a laborer who joined at age 45 was required to contribute 4%. The Plan was changed in 2007 so that new employees were required to contribute at a flat rate, regardless of their age at the time they were hired.

The Litigation
In 2007, the EEOC filed suit on behalf of older County employees who had been hired under the original terms of the Plan. The District Court granted summary judgment to the County in 2008, finding that the Plan did not violate the ADEA because the disparate contribution rates were justified by a permissible financial consideration–the time value of money. The Court reasoned that the system was not based on age but on the number of years an employee had until reaching retirement age. The EEOC appealed and the Fourth Circuit vacated the judgment and remanded the case.

The Decision
On remand, the District Court determined that there are no non-age-related financial considerations that justify the disparity in contribution rates. In other words, the Court concluded that the County charged different contribution rates to different employees based on age and, therefore, age is the “but-for” cause of the disparate treatment in violation of the ADEA.

See also, EEOC press release.

Want some free anti-harassment and anti-discrimination training? Well, have I got a deal for you! Mystery Diners is a reality show on the Food Network. The show’s concept involves a father-daughter team who pretend to be employees and/or customers at a target restaurant in order to help the owner uncover the “leaks in the dam” so to speak.

An episode that aired last week, called, “Managing Disaster,” could be used as a workplace best-practices training video. In short, you could use the video to train employees that any of the conduct by the restaurant’s manager should be considered prohibited conduct in your workplace.

Yes, it really was that bad. And I mean bad. Let me take a moment to run through just a few examples of conduct that occurred during the hiring process.

Candidate #1: Sarah the “Old Lady”

Two women are sent into the restaurant to interview for a waitress position. One of the women is Sarah, who is in her mid-30s and has lots of waitressing experience. She interviewed with the bad-guy-manager (we’ll call him “Manager,” despite he did anything but manage the employees).

During the interview, he asked her how old she was. Yes, you read that correctly. When she answered “I’m 35,” Manager nearly fell out of his seat. He quickly sent her on her way and told her he’d be in touch. After she was out the door, he ran over to the bar, where he told the bartender that Sarah “was like, in her 30s–she’d be like a mother in here!!”

Candidate #2: Destiney In a Short Skirt
The second candidate was Destiney, the daughter of the father-daughter team, who I’d guess to be maybe 21 years old. Destiney was young and cute and wore a short skirt to herinterview. As if Manager hadn’t already shown his true colors during Sarah’s interview, he took it to an entirely new level with Destiney. By the end of the “interview,” though, you can be sure that Destiney had been offered the job.

For starters, he made her sit on a couch for the interview, which was not only way too informal but also clearly uncomfortable for Destiney in light of her attire. When Destiney admitted that she had no real experience to speak of, Manager assured her that experience was not important–“as long as you’re cute.”

Ethical Standards Lower than a Short Skirt

Seeing that he couldn’t ask her about anything relevant to the duties of the job, I guess it’s natural that Manager turned to other topics. In this case, Manager chose “partying,” and began a series of questions about Destiney’s after-hour activities, such as whether she liked to “party” and whether she liked to go clubbing, which “they” (presumably, Manager and his creepy friends), “did all of the time.”

The low point of the “interview” came when Manager touched Destiney’s knee as he sat way too close to her on the low-to-the-ground couch and talked about low-life topics like “partying” and assuring her that his standards for hiring were as low as his morals. What a dirt bag. And you can imagine what the father, who sat in a trailer watching the live video stream with the restaurant’s owner, must have thought as he saw Manager Creepy touch Daughter Destiney’s bare knee. Nice.

When Busted, Blame Others
Folks, the take-aways from this episode are, admittedly, obvious to most of us. They weren’t, apparently, as obvious to Manager Creepy, who was shocked and appalled that the owner had secretly videotaped these antics. And, in a demonstration of some of the best blame-shifting skills I’ve perhaps ever seen, Manager Creepy, furious about the intrusion, turned the entire situation around and accused the owner of being an unsupportive boss.

Be sure to catch the show for some free anti-harassment-and-discrimination training.

Employee_Email.jpgEmployers can find comfort in a recent decision from the Third Circuit, which serves to remind us that we can (and should) discipline employees for policy violations–regardless of whether the employee is in a protected class.

In 2007, while investigating a complaint of sexual harassment, the employer discovered that six employees had regularly exchanged sexually explicit pictures via their company-provided email accounts. All six employees were immediately suspending pending further inquiry. Four of the six employees were subsequently terminated. Each of the terminated employees was in their late 50s or early 60s at the time they were fired.

The four employees then filed suit in federal court in the Western District of Pennsylvania, alleging that they were terminated because of their age in violation of the Age Discrimination in Employment Act (“ADEA”). The District Court granted summary judgment to the employer finding that the employees had failed to demonstrate that “but for” their ages, they would not have been fired. The employees appealed the decision to the U.S. Court of Appeals for the Third Circuit.

To carry their burden on appeal, the employees needed to offer evidence of age bias in order to show that the reason offered for their termination (i.e., the misuse of the company’s email), was merely a pretext for unlawful discrimination. The employees contended that they could demonstrate pretext because they’d been subject to discrimination in the past. They alleged that the following incidents were representation of a culture of age bias:

  1. after asking one of the four employees, Magdic, if he was ready to retire, the company’s CEO said, “it looks like you are ready to retire. You have gray hair and are fat;”
  2. one of the employees, Crossan, was transferred to a different position because the employer wanted “new blood” in the department;
  3. the CEO mentioned the need to recruit a “younger workforce;” and
  4. during meetings, older supervisors sat at one end of the table and were routinely interrupted when they tried to speak, whereas younger employees were encouraged to speak.

The Third Circuit rejected the various evidence proffered by the employees, finding each to be either a stray remarks that were “completely unrelated” to the investigation of the employees’ violation of the company’s email policy.

Hodczak v. Latrobe Specialty Steel Co., No. 11-1085 (3d Cir. Nov. 18, 2011).

The Supreme Court issued its opinion in Gross v. FBL Financial Services last week, holding that a plaintiff bringing an age-discrimination claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Title VII permits plaintiffs to prove that the employer had several motive.  So long as the plaintiff shows that at least one of the motives was discriminatory, he has met his burden to show cause.  The Supreme Court’s ruing in Gross, on the other hand, makes clear that the ADEA does not provide for a mixed-motive analysis.

The decision will have positive implications for employers who find themselves defending against an age-discrimination claim.

Age-discrimination claims are on the rise.  The number of age-based charges of discrimination filed with the EEOC increased by 29% in 2008, according to an article in the Wall Street Journal, More Workers Cite Age Bias After Layoffs. The rise is larger than the overall increase in charge filings, which the EEOC reported as 15% over 2007.  This news won’t come as much of a surprise to most employment law attorneys, though.  We’ve seen a steep increase in charge filings, on the state and federal levels, since the summer of 2008, with a seemingly record-high numbers of charge filed in the Delaware Department of Labor during the months of September and October.  But why have age claims, in particular, been the type subject to the sharpest increase? image

For one, there are more older workers in the workforce today than ever before.  We’re living longer.  And we Traditionalists and Silents have resisted retirement, remaining active members of the workforce.  Statistically, if there are more people over 40, then it follows that there will be more age claims. 

Layoffs are another contributing factor. When layoffs happen, employees with the highest salaries are common targets.  And salary level is often commensurate with years of service.  And, as you may have guessed by now, years of service with a particular employer is often commensurate with years of total employment.

So if these factors are by-products of modern reality, can there really be more age bias in the workplace?  As this unprecedented number of claimants take their claims through the charge process and are released from the administrative process, it will only be a matter of time until we know whether the same staggering increases will be seen in the courts around the country. 

Delaware Employers,

Don’t miss an opportunity to learn up-to-the-minute statistics on the current status of charges in the State of Delaware.  We’re honored to have Julie Klein Cutler, Administrator for the Delaware Department of Labor’s Office of Anti-Discrimination as a Keynote Speaker at Young Conaway’s 2009 Annual Employment Law SeminarRegistration for this year’s employment law seminar is open for only one more week.  If you haven’t signed up already, you can register now to participate in this must-attend educational event.  We hope to see you there!

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann’s managers used profanity and called him a “dinosaur,” resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

Ohio AG Dann

This story comes from the Zanesville Times Recorder’s article, “Complaint: AG’s office discriminated and harassed.”

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG’s departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG’s Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to “discriminate” against him if the AG believed that Kessler’s political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler’s claim for political association (a constitutional claim brought pursuant to the First Amendment’s Right to Freedom of Association), is tossed by the EEOC or the courts, he’ll have the age claim to fall back on.  However, given his actual age (49), the “back-up” argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the “dinosaur comment” might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

“The analysis is not that simple,” Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC’s argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider “the terminated employee’s ‘fungibility’ or usefulness to the employer in comparison to other employees.”

Here, the six younger engineers that EEOC cited as “similarly situated” to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it “fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications.”

This case demonstrates the Court’s continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng’g Co., can be found at Magistrate Judge Thygne’s website.

In response to Smith v. City of Jackson, the EEOC has issued proposed regs addressing disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).

It has been three years since the Supreme Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In Smith, the Court held that the ADEA authorizes claims of disparate-impact discrimination. The EEOC had taken this position long before the Court’s decision.

The Court also held that the appropriate standard for determining the lawfulness of a contested practice is whether the practice can be justified by a “reasonable factor other than age” (the “RFOA test”). This was a departure from the more stringent, “business-necessity” requirement maintained by the EEOC. The new proposed regulation would reflect the City of Jackson decision. The proposed regulation also clarifies that the employer has the burden to show that a RFOA actually exists.

The text of the Notice of Proposed Rulemaking can be found in the March 31, 2008, edition of the Federal Register.

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