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.

When Workplace Bullying is Illegal

blackandwhiteWhat is the  difference  between workplace bullying and illegal harassment?

The major difference is that no law at present prohibits workplace bullying –  despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being.  And most other industrialized countries have enacted laws or regulations that address workplace bullying.

However, bullying  can become illegal when it creates a hostile or abusive work environment in violation of  federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.

 Generally, two factors must exist:

  •  The harassing conduct must create a “hostile work environment.”
  •  The harassing conduct must be directed toward a characteristic that is protected under  federal and state  civil rights laws.  Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.

What is a hostile work environment?  The U.S. Supreme Court says a hostile work environment  is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment.  Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993).  The Court has repeatedly said that Title VII  does not prohibit simple teasing or a merely offensive utterance.

NOTE:  A  target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.

To sum up,  there may be no substantive difference between  the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment.  The harassing conduct can be identical, with the exact same devestating  result.

The significant difference between serious workplace bullying and illegal harassment  is a legal distinction pertaining to  the characteristics of the  target of the conduct.

Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for  all targets of a hostile or abusive workplace, whether or not they fall within a category that is now  protected under the law.

 As Shakespeare once observed: “If you prick us, do we not bleed.”

Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws.  All targets of workplace bullying  are  encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.

EEOC Tackles Ageism in Academia

NOTE: Marymount Manhattan College subsequently entered a consent decree with the EEOC settling the law suit discussed below. Marymount agreed to pay $125,000 to Patricia Catterson and  to comply with the requirements of the Age Discrimination in Employment Act.  The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.  

It appears that the U.S. Equal Employment Opportunity Commission (EEOC) finally may be cracking down on what some say is blatant, rampant and unchecked age discrimination in academia.

The EEOC has filed an age discrimination lawsuit against an elite private liberal arts college, Marymount Manhattan College of New York City, because it allegedly refused to hire a choreography instructor for a tenure track assistant professorship because of her age.

Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the 64-year-old was the leading candidate, the EEOC said, Marymount’s search committee expanded its search to include a less qualified, 37-year-old 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.”  Marymount hired the 37-year-old applicant.

Last year, Nicholas Spaeth, 62, the former state attorney general for North Dakota, filed several groundbreaking lawsuits against law schools, including the Michigan State University College of Law in East Lansing, Michigan, for  allegedly violating the Age Discrimination in Employment Act.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school.

Spaeth has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

He applied to Michigan law school, which ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. One of the new hires had no experience as a legal practitioner. The applicant who was hired by Michigan to teach in Spaeth’s area of specialty, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General, is a former general counsel of H & R Block.

Spaeth earlier filed complaints with the EEOC against more than 100 law schools that also did not offer him an interview.  The EEOC dismissed most, if not all, if Spaeth’s complaints.

One of Spaeth’s age discrimination lawsuits in March passed a critical stage in the legal process. A federal judge denied a motion by Georgetown University’s law school to dismiss Spaeth’s claims that the law school violated federal and District of Columbia laws when it failed to offer tenure-track teaching job. “It… remains plausible that Georgetown could be liable for age discrimination,”   wrote U.S. District Judge Ellen Segal Huvelle in her opinion in Spaeth v. Georgetown University, United States District Court, District of Columbia, No. 11-1376..

The EEOC’s Marymount suit was filed in U.S. District Court for the Southern District of New York (Civil Action No. 12-cv-2388 (JPO) after the EEOC unsuccessfully sought to settle the matter.

“Our suit charges that age was the deciding factor in this case,” said EEOC trial attorney Justin Mulaire.  “Under the law, age has no place in hiring decisions — and tenure-track positions in academia are no exception.”

The Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA).

Elizabeth Grossman, the regional attorney of the EEOC’s New York District Office, said, “Older workers have the right to be evaluated based on their abilities and not based on their age.  The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment settings.”

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.