The EEOC, Age & the Great Recession

The Great Recession hit older workers like a baseball bat.

Older workers were fired and laid off, dumped nto a sea of long-term unemployment, poorly-paid temp or part-time work and into an ill-advised early retirement. Many have not recovered and never will.

In my new book, Betrayed: The Legalization of Age Discrimination, I write that a record number of age discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the recession. The agency did little to respond to the precipitous upswing in age discrimination complaints and has continued to  ignore the problem. I note that in 2013 the EEOC received more than 21,000 complaints of age discrimination but filed only seven lawsuits with age discrimination claims. The book was published in late August.

I was pleased to read an announcement by the  EEOC  on Monday that the agency had settled an age discirmination lawsuit that it filed on September 15 against DSW Inc., a national shoe retailer which allegedly unfairly fired older workers from 2008 -2009.  The agency said DSW had agreed to pay $900,000 in monetary relief to seven former managers and about 100 other former employees. If split evenly, that works out to approximately $8,400 per age discrmination victim. The settlement also requries DSW to report any future employee complaints of age discrimination to the EEOC for the next three years and to revise its anti-discrimination policy.

DSW, which is based in Columbus, Ohio,  allegedly used a common tactic to get rid of older workers during periods of economic turmoil. The EEOC alleged that DSW used a “reduction in force”  to fire the older workers, and then retaliated against employees who refused to fire other workers based on their age.

DSW issued a statement in which it denied engaging in age discrimination, insisting it settled the case to avoid the costs of litigation. “Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. The number of complaints reached an all-time high of 24,582 in 2008.

The case, EEOC v. DSW Inc., Civil Action No. 14-cv-07153, was filed in the U.S. District Court for the Northern District of Illinois.

 

Older Workers: Ruby Tuesday is Hiring!

Yesterday don’t matter when it’s gone?

It does to the U.S. Equal Opportunity Commission (EEOC).

The restaurant chain, Ruby Tuesday, Inc., named after the classic Rolling Stone song, has agreed to pay $575,000 to settle a  class age discrimination lawsuit filed in federal court in Pennsylvania by the EEOC in 2009 against six of the chain’s restaurants. (EEOC v. Ruby Tuesday, Inc., Civil Action No. 09-1330).

Perhaps more significantly,  the consent decree signed by Ruby Tuesday contains an unusually detailed and comprehensive multi-year plan that requires Ruby Tuesday to recruit and hire older workers.

The EEOC lawsuit charged that Ruby Tuesday violated the Age Discrimination in Employment Act of 1967 (ADEA) by discriminating against job applicants who were 40 years of age or older at six of the chain’s restaurants located in West Mifflin, Greensburg, Altoona, Du Bois, and Indiana, Pa., and in Beachwood, Ohio.

Ruby Tuesday also allegedly failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations.

The equitable relief outlined in the three-and-one-half year consent decree requires Ruby Tuesday to:

  • Implement numerical goals for hiring and recruitment of job applicants age 40 and older at the affected locations;
  • Review its job advertisements to make certain they do not violate the ADEA;
  • Conduct audits, including random reviews of hiring decisions, to ensure non-discrimination and compliance with the  consent decree;
  • Evaluate the job performance of people with hiring authority for the six stores named in the consent decree and set their compensation (including bonuses), in part, based on their degree of success in helping Ruby Tuesday ensure that its recruitment and hiring practices provide equal employment opportunities for people who are 40 or older;
  • Designate a decree compliance monitor for oversight of compliance with the requirements of the ADEA and the terms of the consent decree;
  • Provide extensive training on the requirements of the ADEA and the consent decree to the decree compliance monitor, human resources personnel and hiring authorities of the six stores named in the consent decree; and
  • Report to the EEOC and keep records about its hiring practices and compliance with the consent decree.

Philadelphia Regional Attorney Debra M. Lawrence said “the extensive training and equitable measures are designed to improve recruitment and hiring of older workers and protect all applicants from age discrimination.”

According to its website, www.rubytuesday.com, Ruby Tuesday, Inc. has nearly 800 company-owned and franchised restaurants and more than 40,000 corporate and franchise team members.

“Lose your dreams
And you will lose your mind.
Ain’t life unkind?
Goodbye, Ruby Tuesday”

Dance Over: College Must Pay

The dance is over for Marymount Manhattan College.

 The EEOC has announced that  Marymount, a private liberal arts college in New York City,  has settled a lawsuit filed by EEOC alleging that it refused to hire a choreography instructor for a tenure-track assistant professorship because of her age.

dancer The EEOC prosecution  appeared to be the first salvo by the EEOC in the war against rampant age discrimination in higher education.

 According to the EEOC’s suit, Marymount passed over a 64-year-old applicant for an assistant professorship in dance composition who had been working at Marymount, and instead hired a 38-year-old applicant. The suit charged that this violated the Age Discrimination in Employment Act (ADEA), which prohibits age discrimination against employees and job applicants who are age 40 or older.

 By the terms of the consent decree settling the suit, Marymount agreed to pay $125,000 to Patricia Catterson. Further, it agrees to comply with the requirements of the ADEA. The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.

Marymount initially selected Ms. Catterson and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the  Ms. Catterson was the leading candidate,  Marymount’s search committee expanded its search to include the less qualified younger applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”

 New York District Director EEOC Kevin Berry said, “Under the law, age has no place in making hiring decisions – and tenure-track positions in academia are no exception.

Ms. Catterson had been teaching as an adjunct professor in MMC’s Dance Department for 10 years. She had also been on the faculty of The Juilliard School, Princeton University, and Manhattanville College.

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.