Age Discrim. Lawsuits: Like Shooting Fish in a Barrel

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The underlying premise of our legal system is that two competent adversaries plead their case before a neutral arbiter.

A recent decision by the Supreme Judicial Court in Massachusetts, the state’s highest appellate court, shows just  how unrealistic this premise is today when victims of age discrimination who are poor or middle class cannot afford to hire an attorney. These unrepresented plaintiffs are routinely denied access to justice.

The case involves an age and gender discrimination complaint filed by Carolyn O. Faulk, who was fired by CVS Caremark Corp., and  Stanley D. Howard, who contributed to Faulk’s support after her dismissal. He essentially sought reimbursement from Caremark

The trial court denied Ms. Faulk’s request for the appointment of counsel and dismissed Howard’s claim on the grounds that he lacked “standing.”  Howard filed an appeal and both Faulk and Howard sought to temporarily halt the proceedings until the appeal was decided. Caremark filed a motion for sanctions against the plaintiffs.

Needless to say, Faulk and Howard lost at every turn. Their complaint was ultimately dismissed. Caremark’s motion for sanctions was allowed to proceed. The state’s high court affirmed the lower court, ruling that the issue of whether Faulk was entitled to court-appointed counsel was  “moot” because her case had been dismissed.

In any case, the appeals court said, Faulk failed to meet her “burden to allege and demonstrate the absence of inadequacy of other remedies.”  The court said Faulk could have sought interlocutory review of the denial of her motion for the appointment of counsel “pursuant to G.L. c. 231, § 118m first par. … ” Alternatively, the court said, she could have sought review of the denial of her motion in a direct appeal from the judgment of dismissal.

Of course, this presumes that Faulk understood her options without having the benefit of legal counsel to advise her. I daresay that few lay people could define the term “interlocutory appeal” let alone file one.  So Faulk’s case, at least arguably, was dismissed because Faulk didn’t have an attorney.  And her appeal of the trial court’s motion denying her an attorney was dismissed because …. she didn’t have an attorney.

This case, like millions of other, demonstrates the urgent need for modernization of our nation’s court system to insure there is some semblance of parity between unrepresented individuals and the team of expert counsel employed by major corporations like Caremark. This is no longer a system between two competent adversaries. Today,  age discrimination cases are the equivalent of shooting fish in a barrel for corporate defendants, who retain a team of staff attorneys and hire specialized counsel to overwhelm individual plaintiffs without counsel.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I refer to research showing that individuals who file employment discrimination complaints feel the court system is profoundly unfair. It’s hard to argue with this when courts allow the underlying issue – discrimination – to be completely obscured by complicated, obtuse procedural motions. It’s hard to know whether justice was done in Faulk’s case but clearly she was at a major disadvantage because she wasn’t represented by legal counsel who understood the court’s complex procedural rules.

The case is Carolyn O. Faulk and another v. Caremark Corp. and others, October 24, 2014.

Int’l Group Recognizes New Book on Age Discrimination

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The International Federation on Ageing (IFA) has recognized my new book, Betrayed: The Legalization of Age Discrimination in the Workplace.

The IFA is a non-governmental, non-profit organization based in Toronto, Canada that works to inform, educate and promote policies and practice that improve the quality of life of older persons around the world.

An article on the IFA notes that Betrayed: The Legalization of Age Discrimination in the Workplace, addresses the “epidemic” of age discrimination in the workforce in the United States, a problem that often catapults older workers into a penurious, unwanted and ill-advised “early retirement.”

The IFA published a Declaration of the Rights and Responsibilities of Older Persons in 1990 detailing the rights of older people to care, dignity, self-fulfillment, participation and independence. This document is the foundation of the UN principles of Older Persons, adopted in December 1991. The IFA has General Consultative Status at the United Nations Economic and Social Council (ECOSOC).

The IFA is part of a wide-ranging network of member organizations around the world which extends to over 70 countries covering every region. Together these organizations represent over 55 million older people.

 

HR Doesn’t Work for Workplace Abuse Victims

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This blog initially began with a rhetorical question – how do perpetrators of domestic violence act when they report for work?

I was reminded of this when I read about the travails of Canadian Broadcasting Corporation radio broadcaster, Jian Ghomeshi, 47, who was fired recently because he allegedly brutally assaulted three much younger women under the auspices of “rough sex.”

The Toronto Star also reported that a CBC staffer who worked on Ghomeshi’s show, Q,  complained to the CBC of verbal and sexual harassment by Ghomeshi. According to the Star:

“She never dated Ghomeshi. She alleges he approached her from behind and cupped her rear end in the Q studio, and that he quietly told her at a story meeting that he wanted to “hate f—” her.

The woman said she complained about Ghomeshi’s behaviour to her union representative, who took the complaint to a Q producer. As the woman recalls, the producer asked her “what she could do to make this a less toxic workplace” for herself. No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.”

What could the CBC have done to make the workplace less toxic? Really? And this is a unionized workplace?

Victims of workplace discrimination, harassment and abuse often find a deaf ear when they complain to the Human Resources Department. It’s obvious that HR exists at management’s pleasure, to protect management, and not to protect victims of workplace abuse. No matter how many anti-harassment policies are place, that is the bottom line.  Ghomeshi was a major talent at CBC and his subordinate wasn’t.

The question that began this blog is rhetorical because we all know that when abusers go to work they do not stop being abusers. Abuse is about exerting undue  power and control in relationships, whether it be with a partner or a co-worker or subordinate.  That’s why workers everywhere need laws to protect them from workplace abuse and they need courts that are willing to enforce those laws when employer’s won’t.  Maybe some day?

According to the Star, none of the four women the paper interviewed have ever filed a police complaint against Mr. Ghomeshi, and none of them agreed to go on the record. The women said they are afraid that if they come forward, they will be sued or become victims of vicious online attacks, the paper reported.

The Lack of Equal Justice for All

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There was an article in the New York Times recently about the elusiveness of justice for African-Americans in the criminal justice system.

This obviously reflects ingrained racism but it is also a symptom of a wider problem – the lack of equal justice for the poor and the middle class in America.

The leadership of our nation’s civil and criminal justice system, the U.S. Supreme Court, does not serve as a role model for equal justice for all. And the U.S. Congress, which holds the power of the purse-strings over the judicial branch, provides no discernible oversight as to how the court system spends taxpayer money.

An egregious example of the wider problem is  the U.S. Supreme Court‘s refusal to allow its proceedings to be broadcast. This is really an issue about transparency and accountability.  The leadership of the third branch of government in the world’s leading democracy has chosen not to be transparent and or accountable. And if you don’t like it, tough!

The Court’s disdainful attitude toward the American public was not acceptable after television attained broad popularity fifty years ago and it is completely unacceptable in the Internet age. The Court exists to serve the public, not the Court.  This doesn’t mean the Court is subject to the whims of the majority but that the Court must be guided by founding American principles of equality and justice for all.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I focus on the civil justice system, which  has utterly failed to protect older workers from irrational and harmful age discrimination. This is particularly true for vulnerable older workers (i.e. minorities and women).

The Age Discrimination in Employment Act of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court, which has made it almost impossible to win a federal age discrimination lawsuit. Age discrimination has become normalized in American society and is trickling down to ever younger workers (i.e., the youth apartheid state of Silicon Valley).  But younger workers have years to rebound, while older workers often are plunged into a penurious old age of deprivation.

I suggest the judiciary create a special federal court to hear appeals in  discrimination cases. This court could be staffed with federal judges who are both educated in and dedicated to the concept of equal justice. This court would not be limited to age discrimination but would decide appeals in all cases alleging discrimination on the basis of race, sex, religion, sexual orientation and disability, etc.

Age discrimination represents a kind of government subsidy for employers, by allowing them to replace more expensive older workers with cheap young labor. Taxpayers  pick up the tab in the form of higher social welfare costs, including health care and Social Security benefits.  I doubt that most taxpayers would want to pay this subsidy if they knew they were paying it.

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