The California Supreme Court ruled in Reid v. Google that the discriminatory “stray remarks” of coworkers who don’t make employment decisions can influence decision-makers and are sufficient to avoid summary judgment.  Plaintiff Brian Reid filed an age discrimination claim under the California Fair Employment and Housing Act (FEHA) and California‘s Unfair Competition Law (UCL) alleging Google fired him because he was perceived as “too old to matter” and “obsolete.”  He further alleged that coworkers called him names such as “old man” and “old fuddy-duddy.”  The court held that such derogatory comments are sufficient to allow Reid’s lawsuit to proceed to trial.

The attorneys at The Employment Law Group® have experience litigating Age Discrimination claims in California and other states.  For more information on the firm’s Age Discrimination Practice, click here.

On June 1, 2010, the New Jersey Supreme Court held that a community college’s failure to renew an employment contract because of the employee’s age constituted unlawful age discrimination in violation of the New Jersey Law Against Discrimination.  The New Jersey law contains a provision which allows an employer to refuse to hire someone over age 70.  However, according to the court, this exception applies only to new hires and not contract renewals.  The case is Nini v. Mercer County Community College.

For more information about The Employment Law Group® law firm’s Age Discrimination Practice, click here.

On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking in the Federal Register.  The proposed rule will address the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA) in response to the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008). 

In Smith, the Court held that a disparate impact claim can be made under the ADEA but that such claims are limited by the RFOA provision of the ADEA.  In Meacham, the Court held that the RFOA provision of the ADEA creates an affirmative defense for employers.  Seeking to clarify the scope and application of the RFOA provision, the EEOC has proposed amendments to 29 C.F.R. § 1625.7 which would add the following:

• A totality of the circumstances test specifying that the analysis of an RFOA defense “must be made on the basis of all the particular facts and circumstances surrounding each individual situation.”
• A definition for “reasonable” and a sample list of factors to examine when determining whether an employment practice is reasonable.  Generally, “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer” that is “mindful of its responsibilities under the ADEA.” 
• A sample list of factors to consider when determining if an employment practice is based on “factors other than age.”

For more information on The Employment Law Group® law firm’s Age Discrimination Practice, click here.

On October 22, 2009, the Fourth Circuit Court of Appeals reversed a district court ruling granting summary judgment against TELG client Dean Inman.  Mr. Inman was the former Vice President of Technology at Klockner Pentaplast of America (KPA) based at their Charlottesville, Virginia location.  Klockner Pentaplast, KPA’s parent company is an international manufacturer perhaps best known for making rigid plastic films and blister packaging. 

Mr. Inman’s suit claims he was fired for being too old while the company underwent efforts to create a revitalized and younger appearance to lure potential buyers of the firm.  The appellate court issued a per curium decision holding that the trial court erred when it granted the motion since the facts alleged are sufficient to show that Mr. Inman was discriminated against on account of his age.  The case was argued by Adam Augustine Carter, a principal at The Employment Law Group® law firm, with R. Scott Oswald on the brief as well.  The AARP filed a brief as amicus curiae urging reversal in favor of Mr. Inman.  Dan Kohrman and Laurie McCann were on the brief for the AARP.

A copy of this opinion is available here.  For information on The Employment Law Group® law firm’s Age Discrimination Practice, click here.

The Second Circuit has clarified that an employer can be liable under the Age Discrimination in Employment Act (“ADEA”) for an independent contractor’s decision to discriminate against a job applicant because of his or her age.  In Halpert v. Manhattan Apartments, Inc., Michael Halpert alleged that Manhattan Apartment Inc. (“MAI”) refused to hire him for a position showing rental apartments because he was “too old.”  The district court granted summary judgment for MAI, finding that the company could not be held liable for discrimination because Robert Brooks, the individual who interviewed Halpert for the position, was an independent contractor and not an employee of MAI.  The Second Circuit reversed and remanded the case to the lower court, concluding that “[a] company’s potential liability does not depend on whether the individual hiring for the company … is an employee or an independent contractor” but rather “[whether] a company gives an individual authority to interview job applicants and make hiring decisions on the company’s behalf…and that individual improperly discriminates against applicants on the basis of age.”  

This case is significant because it rejects the misconception that employers can absolve themselves from potential liability under federal anti-discrimination laws by using independent contractors and other third parties to conduct human resource functions on their behalf.  In short, the ADEA applies “regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role.”

The Equal Employment Opportunity Commission (EEOC) has published a document titled, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to provide guidance for employees on waivers executed as part of their severance agreements.  The document offers basic information about severance agreements, including legal requirements and necessary provisions for a valid severance agreement.  Key points include:

1. Consideration – A severance agreement must be supported by consideration, i.e., a lump sum payment of a percentage of an employee’s annual salary.
2. Validity— A severance agreement is valid only where an employee knowingly and voluntarily consents to the waiver.
3. EEOC Charges – Regardless of the broad language used in a waiver to describe the claims that an employee is releasing, an employee can still file a charge with the EEOC for discrimination.
4. Other Rights – A severance agreement may not limit an employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA.  Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.

The EEOC also provides a specific discussion on waivers of age discrimination claims to address recent developments under the Age Discrimination in Employment Act (ADEA), such as the Supreme Court’s controversial decision in Gross v. FBL Financial Services, Inc.

For information on The Employment Law Group® law firm’s Employment Discrimination Law Practice go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.

In a 5-4 decision, the Supreme Court has held that an employee bringing a claim under the Age Discrimination in Employment Act (ADEA) must show that age was the “but for” cause of the challenged adverse action.  Moreover, the court held that the burden does not shift back to the employer to prove that it would have taken the same action regardless of the employee’s age even where the employee has produced some evidence that age was a motivating factor in the adverse decision.  In Gross v. FBL Financial Services, Inc., Jack Gross, a 54-year old employee filed a complaint against FBL Financial Services, alleging that the company demoted him from a claims administration director to a claims project coordinator because of his age.  Gross won at trial under an ADEA mixed-motive instruction, which allowed the jury to find liability based on age being a “motivating factor” in the adverse action.  The Supreme Court reversed, finding that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age’ is that age was the [primary] ‘reason’ that the employer decided to act,” and not just one of many factors that played a role in the employer’s decision.  According to the Court, victims of age discrimination can no longer rely on the Supreme Court’s Price Waterhouse ruling as a basis for mixed-motive jury instructions in ADEA cases because “[t]he ADEA’s text does not authorize an alleged mixed-motives age discrimination claim.”  While the immediate impact of this decision may be discouraging for employees, the good news is that it will likely spur Congress to amend the ADEA so that employees need only prove that age was a motivating factor in an employer’s decision.  For additional information on the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

In a recent decision, the Maryland Court of Appeals has clarified that a school board “may not raise the defense of sovereign immunity to any claim of $100,000 or less,” including claims brought by individuals under the Age Discrimination in Employment Act (“ADEA”).  In her complaint, Ms. Zimmer-Rubert, a 60-year old teacher alleged that the Board of Education of Baltimore County (“Board”) discriminated against her by rejecting her employment application and filling vacant positions with younger teachers despite her qualifications.  The Board moved to dismiss the teacher’s claim, arguing that it could not be sued for age discrimination because as a state agency it was entitled to sovereign immunity.  The court rejected the Board’s argument, concluding that § 5-518(c) of the Maryland Code Courts and Judicial Proceedings Article expressly waives all governmental immunity, including sovereign immunity, for disputes in the amount of $100,000 or less.  Finding that Ms. Zimmer-Rubert’s complaint demanded only $100,000 in damages, the court allowed the teacher to proceed with her ADEA claim against the Board. 

The takeaway point of this case is that the Eleventh Amendment immunity from suit is not absolute.  However, plaintiff must affirmatively seek and apply any statutory exceptions to the sovereign immunity defense.  For more information on discrimination claims and the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://www.employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit reiterated the notion that temporal proximity, i.e., evidence that “the employer had knowledge of the employee’s protected activity, and the adverse personnel action took place shortly after the activity” can support an inference of retaliatory motive thereby, allowing employees to survive summary judgment in Title VII and ADEA retaliation claims.  In Jones v. Bd. of Governors of the Fed. Reserve Sys., Charles Jones filed a complaint against his employer, the Board of Governors of the Federal Reserve System (“the Board”), alleging that the Board discriminated against him when it denied him a promotion to a managerial position in favor of a younger woman, and further retaliated against him when he requested a hearing before an administrative law judge on his discrimination claims.  The Board moved for summary judgment on Jones’s retaliation claims, arguing that the timing between Jones’s protected activity and the allegedly adverse evaluation does not support an inference of retaliation.

The district court granted the Board summary judgment, concluding that Jones had not satisfied his prima facie burden of retaliation because he “failed to establish that his supervisors had knowledge of” his September 2000 request for a hearing.  The Court of Appeals reversed, holding that to survive summary judgment, an employee need not provide direct evidence that the employer knew of his protected activity, but rather need only offer circumstantial evidence that could reasonably support an inference that the employer had such knowledge.  Additionally, the Court noted that because the Board asserted its legitimate non-retaliatory explanation for the 2000 evaluation, the district court should have considered only whether the evidence “either separately or in combination” was sufficient for a reasonable jury to infer retaliation, and not “whether Jones made out a prima facie case.”  Finding that Jones’s evidence of temporal proximity was sufficient to support an inference of retaliatory motive, the Court remanded the case to the district court.
 
This case is significant because it rejects the notion that temporal proximity can serve only as persuasive evidence to establish a prima facie case of retaliation, and suggests that employees can proceed with their claims even where the only evidence of a causal connection is based on temporal proximity.  For information about The Employment Law Group® law firm’s Discrimination Practice, click here.

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, which expands the time frame in which employees can sue for discriminatory compensation under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disability Act (ADA).  Under the new law, employees can file a complaint for pay discrimination within 180 days of any discriminatory compensation decision, rather than within 180 days of the first occurrence of pay discrimination.  In other words, the new law permits employees to sue for pay discrimination within 180 days of their most recent paycheck. 

The Act is in response to the 2007 Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber Co., where the Court in a 5-4 decision, concluded that Ledbetter could no longer make a claim of gender-based pay discrimination with the Equal Employment Opportunity Commission because she failed to do so within 180 days of the initial discriminatory compensation decision.  The problem with requiring a strict timetable for reporting pay discrimination is that it often takes employees years to detect wage disparities.   Ms. Ledbetter for example, did not learn that she was being paid less than similarly-situated males until she was approaching retirement, several years after the pay discrimination allegedly began.  The new law however, restores the employees’ ability to challenge unequal pay by relaxing the statute of limitations for initiating a claim of unequal pay.  The Act applies to all discrimination claims under Title VII, the ADEA, and the ADA, and is effective for any claims made on or after May 28, 2007. 

The Employment Law Group® law firm routinely represents employees subjected to discriminatory practices because of their gender, race, national origin, age or disability.  Recently, the firm won a $466,000 plus verdict for a former female director who alleged that her employer discriminated against her by paying her less than similarly-situated male directors.  For more information on the firm’s Discrimination Practice, click here.