Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

Is Google Really America’s Best Employer?

Note: Google has settled the case out of court; Brian Reid’s lawyer declines to say for how much America’s “best employer” was forced to shell out to settle the age discrimination case.  PGB

Google was ranked number one this week in Fortune Magazine’s “100 Best Companies to Work for,”  and it does seem to be a great place to work  — unless you remember a time when the only “search engine” was the card catalog at your local library.

Google is battling an age discrimination lawsuit brought by a former executive, Brian Reid, who was hired by Google in 2002 as director of operations and engineering.  After two years, Reid, then 54, was fired  by Google.

Reid has a Ph.D. in computer science and is a former associate professor of electrical engineering at Stanford University. He managed a team that built one of the first Internet search engines at AltaVista.

In the lawsuit, Reid said supervisors and co-workers at Google made numerous derogatory comments about his age, stating that he was not a “cultural fit” for the company, that he was “an old man,” “slow,” “sluggish,” “lethargic” and “an old fuddy-duddy” who “lacked energy.” Co-workers allegedly joked that Reid’s CD (compact disc) jewel case office placard should be an “LP” instead of a “CD.”

Reid also offered statistical evidence of age discrimination at Google, evidence Google demoted him to a nonviable position before terminating him, and that Google advanced changing rationales for his termination.

The trial court initially dismissed Reid’s lawsuit, after Google filed a motion for summary judgment.  But Reid appealed and the lawsuit was reinstated by the California Court of Appeals, which said undisputed evidence supported a prima facie case of age discrimination. Google appealed that decision to the California Supreme Court, which also ruled in Reid’s favor.

Google argued that the derogatory comments made by staffers about Reid should be rejected under the judicial “stray remarks doctrine,” and that slurs like “fuddy-duddy” are insufficient to show that Google’s asserted reason for firing Reid was a pretext for age discrimination.

The California Supreme Court agreed with the appeals court’s determination that the categorical exclusion of evidence by the application of the “stray remarks doctrine” was unnecessary and might lead to unfair results in Reid’s case.  The Court said the so-called “stray remarks” should be evaluated in combination with all of the evidence.  [See Reid v. Google, Inc., 50 Cal.4th 512 (2010)]

The only written performance review of Reid by Google was positive. His supervisor, Wayne Rosing,  described Reid as having “an extraordinarily broad range of knowledge concerning Operations, Engineering in general and an aptitude and orientation towards operational and IT issues.”  Reid was praised for “project[ed] confidence when dealing with fast changing situations,” and being “very intelligent,” “creative,” “a terrific problem solver.”

But Reid’s supervisor wrote that “[a]dapting to Google culture is the primary task for the first year here . . .. Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” (Emphasis added.)

The review concluded that Reid “consistently [met] expectations.”

In October 2003, Reid was removed from his position as the director of operations position, and relieved of his responsibilities as director of engineering. He was replaced by two employees, who were 15 and 20 years younger, respectively.  Google asked Reid to develop  an in-house graduate degree program and an undergraduate college recruitment program.

Reid maintains that Google’s then-CEO Eric Schmidt assured him the graduate program was important and would last at least five years. But Reid was given no budget or staff to support it.

Google says it fired Reid on February 13, 2004 because it was eliminating graduate degree program and Reid’s job, and because of poor performance. Reid says he was given no reason for his termination other than lack of “cultural fit.” He said he was told the graduate program would continue and his termination was not performance based.

According to CNN,  Google was picked as best employer because: “Employees rave about their mission, the culture, and the famous perks of the Plex: bocce courts, a bowling alley, eyebrow shaping (for a fee) in the New York office. Then there’s the food: some 25 cafés companywide, all gratis. Wrote one Googler: “Employees are never more than 150 feet away from a well-stocked pantry.”

Among other things, Reid’s complaint includes claims for age discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), wrongful termination in violation of public policy; failure to prevent discrimination; and both negligent and intentional infliction of emotional distress.

*  Editorial note: Before I confer the honor of America’s best employer on Google, I’d like to see how Reid’s lawsuit turns out. We may never see that, of course, because given the direction the litigation has taken, Google may be SERIOUSLY considering an out of court settlement (if it hasn’t already). In any case, I am not inclined to think that any employer who engages in pervasive age discrimination (or any other kind of illegal discrimination) is exemplary or worthy of honor. And I predict that the young people who are so thrilled with bocce ball and free coffee today will have a sad awakening in the not too distant future. They may start hearing “stray remarks” just around the time their children start thinking about college, when a paycheck would really come in handy.