Staples Must Pay $26 million for Age Discrimination

A Los Angeles Superior Court jury  hit the “Easy” button and ordered Staples, Inc., the office supply chain, to pay  $26 million in damages in an age discrimination case.

Bobby Nickel., 66, was hired in 2002 to work as a facilities manager for Corporate Express. He had positive employment evaluations until 2008, when the company was purchased by Staples Inc.  Nickel said Corporate Express’ pay scale was higher than the pay scale for employees hired by Staples.

Nickel said he was a  victim of age discrimination and wrongful termination by Staples managers who were intent upon pushing out older workers who earned higher salaries.

The jury deliberated for two days before awarding Nickel $22.8 million in punitive damage and $3.2 million in compensatory damages on February 27.

Nickel alleged that Staple’s used the following  tactics to run him out of his job as a facilities manager:

  • A supervisor prompted  Nickel  to resign.
  •  Nickel said he was disciplined for a series of minor infractions.
  • He suffered increasing levels of harassment from co-workers and a manager;  was the regular butt of jokes at staff meetings;  and was referred to as “old coot” and “old goat.”
  • A receptionist  told Nickel that she was ordered by management to provide a false statement about Nickel’s conduct but that she refused to do so.

Nickel was suspended and  fired in 2011 when he was 64 years of age for allegedly stealing a 68-cent bell pepper from the Staples cafeteria.  Nickel said he intended to pay for the bell pepper through an honor system set up by the cafeteria vendor. However,  Staples said the  taking of the bell pepper violated the company’s zero-tolerance policy when it came to “dishonesty of any kind, including theft or misappropriation of company property.”

A Staples spokesman said the company disagrees with the verdict and plans to appeal.

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”

1 in 5 Older Workers Report Age Discrimination

Problem Worse for Minorities

Twenty percent of workers aged 50 or older say they have personally experienced age discrimination in the workplace since turning age 50.

This is a finding from a national survey of 1,024 adults aged 50 and over by the Associated Press NORC Center for Public Affairs.

The problem is more acute for non-whites. Twenty-eight percent of non-whites who are aged 50 or older say they have personally experienced prejudice or discrimination in the job market due to their age compared to 17 percent of whites.

Types of discrimination suffered by workers include being passed over for a raise, promotion or chance to get ahead, receiving unwanted assignments or being denied access to training or the opportunity to acquire new skills because of their age.  Thirteen percent of those surveyed said they heard unwelcome comments about their age in the workplace.

And that’s older Americans who are working!

Unemployed

Other research shows that older Americans who lose their jobs descend into a black pit of unemployment that many cannot escape.  The share of workers who’ve been unemployed for more than six months was 37.9 percent in August 2013. But for those 55 and older, nearly one in two (47 percent) were out of work for  six months or more.

Hundreds of thousands of older Americans have been forced to retire as soon as they can claim Social Security retirement benefits  – when they reach the age of 62 –to survive economically. Those who retire at age 62 receive a 25% cut in benefits for the rest of their lives.

The AP survey found that more than a third (33%) of Americans who are retired said they did not feel they had a choice except to retire.  Fifty-four percent of retirees under age 65 felt they had no choice but to retire compared with 23 percent of retirees 65 or over.

It is unclear why so many older Americans are suffering from what appears to be unprecedented rates of discrimination and joblessness. One reason could be that employers know that they likely will not be held accountable for age discrimination.

The U.S. Supreme Court issued a devastating decision,  Gross v. FBL Financial Services, in 2009 that eviscerated the Age Discrimination in Employment Act of 1964 by establishing a much higher standard of proof for victims of age discrimination than exists for victims of race of sex discrimination.  The U.S. Congress could have “fixed” the damage but has not acted.  In addition, the U.S. Equal Employment Opportunity Commission has filed only a fraction of lawsuits in recent years against employers compared to the past.

Other findings

Other findings from the AP survey indicate that former notions of “retirement” as an end to one’ s work life are dead or dying:

  • Before the Great Recession, the retirement average age was 57, while the average for those who retired afterwards is 62.
  • Among those who are working and not yet retired, 47 percent say it is very likely that they will do some work for pay during their retirement and another 35 percent say it is somewhat likely.
  • Twenty-two percent of adults age 50 years and older have searched for a job in the last five years. Of these, 55 percent found the job search to be moderately or very difficult.
  • About a quarter (24%)  of Americans aged 50 and older report having less than $10,000 in retirement savings and  investments. Thirty-nine percent of all people ages 50 and older report having less than $100,000 tucked away for retirement, not including pensions or the value of primary residences.

The Changing Language of Age Discrimination …

Note: The Superman’s cape ruling referenced below was subsequently reversed when Securitas appealed to the full appeals court, which issued a 9-3 ruling that the Johnson could not sue Securitas because “the separate aspects of the record Johnson focuses on …do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination.” The full court said Securitas put forth a legitimate non-discriminatory reason for terminating Johnson. The company claimed Johnson had left his shift an hour early without permission (Johnson denied this) and delayed reporting a collision with another vehicle.. Moreover, the full court said the supervisor who made the ageist comments about Johnson was only one of three who fired Johnson. The full court refused to “speculate” that the supervisor persuaded the other two supervisors to fire Johnson because of his age.

More Subtle: Just as Harmful

Few managers today are so ignorant as to call an older worker  a “geezer,”  “old fart,” “biddy,” “codger,” “graybeard,” or “old goat.”

The modern discriminator is much more likely to use code terms that are based on ageist stereotypes to describe older workers, like “old fashioned,” “rigid,” “old school,” and” “resistant to change.”

Courts are beginning to recognize the evolution of the language of age discrimination, though, ironically, many courts continue to use arguably ageist terminology in their own judgments and written opinions.

Superman’s Cape

The U.S. Court of Appeals in the Eighth Circuit in a 2-1 opinion recently ruled that security officer, Carlyn Johnson, 76, could  sue Securitas Security Services, USA, Inc. for age discrimination.  Johnson  had been fired after becoming involved in a car accident while on-duty and allegedly leaving his post early.

Among other things Johnson’s supervisor nicknamed him “Superman” and repeatedly told him it was time for him to “hang up his cape.”  The supervisor also told him he was “too old to be working” and compared him to the supervisor’s 86-year-old father who was no longer working.

These comments were the only evidence produced by Johnson of age animus, which is a necessary to prove discrimination under the  Age Discrimination in Employment Act (ADEA).

A  lower court judge dismissed Johnson’s complaint after finding that the supervisor’s comments were “age neutral” stray remarks that did not prove that age discrimination was a factor in Johnson’s dismissal.

The appeals court disagreed. “Viewing the facts in a light most favorable to Johnson, a reasonable jury could find Securitas was motivated to terminate Johnson based on age animus,” the appellate court ruled.

Elderly?

The fact that judges are only beginning to recognize ageist language is sadly evident in their own judgments and opinions which, ironically, contain ageist language.

Helene Love, L.LM, the author of a law review article entitled  Ageism, Language and the Law, says the term “elderly” is used routinely by judges despite the fact that it is widely considered to be an ageist term.  She said social science research shows  the term “elderly” is associated with negative attributes like vulnerability, sadness and loneliness and frailty.  Using the term “elderly” perpetuates common negative stereotypes about older adults, writes Love.

Love cites research showing that older adults do not choose to self-identify with the word “elderly” because it implies frailty, disability or senility.   Love states that under the entry “elderly” in the Thesaurus of Aging Terminology, readers are advised to use the expression older adults.

Love defined ageist terms as “words that are derogatory or demeaning because they depict older adults as possessing largely undesirable traits and characteristics.”

Love’s  article appears in 31 Windsor Review Legal & Social Issues 141 (2011), a publication of the law school of the University of Windsor, Ontario, Canada.

*** Note: I’m writing a book on age discrimination and I would like to hear the stories of readers who have experienced this problem. Please email me at barnespatg (at) gmail.com.