Boston Employment Lawyer Blog

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as "smoking gun" evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, "We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot." Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This is exactly what occurred in Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination one month later only after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer's initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company's policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer's failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone's future earnings are reduced by discrimination), back pay (the plaintiff's lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney's fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge's decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court ("SJC") agreed with the plaintiff that the trial court's decision to take away the jury's award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge's order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant's conduct is outrageous or egregious. In determining whether the defendant's conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant's conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.

You can watch a video of the oral arguments in the Haddad case on Suffolk Law's website.

Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned significantly less than her male colleagues. Not surprisingly, a jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court's decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Employment discrimination claims will continue to garner the Supreme Court's attention in 2009. On December 5, 2008, the Supreme Court granted certiorari in Gross v. FBL Financial to decide the following issue:

Must a plaintiff present direct evidence of discrimination in order to obtain a mixed motive instruction in a non-Title VII discrimination case?

Gross asserted an age discrimination claim under the Age Discrimination in Employment Act (ADEA) and prevailed before a jury. At trial, Gross was required to prove that his age was a "motivating factor" in his employer's decision to demote him. In doing so, Gross relied on circumstantial evidence. The 8th Circuit Court of Appeals, however, reversed on the basis that the trial court should have required Gross to use direct evidence to prove age discrimination under the ADEA.

The Supreme Court and Massachusetts courts are no strangers to mixed motive issues. In Price Waterhouse v. Hopkins, which involved gender discrimination under Title VII, the United States Supreme Court held that the burden of persuasion shifts to the employer once mixed motives have been shown. Justice O'Connor's concurring opinion in Price Waterhouse, however, required an employee to produce "direct evidence" of discrimination where mixed motive is at issue. Congress later amended Title VII to make "motivating factor" -- and not "direct evidence" -- the standard required in mixed motive cases.

The Supreme Judicial Court (SJC) of Massachusetts faced a similar issue in Wynn & Wynn, P.C. v. Massachusetts Commission Against Discrimination, which involved gender discrimination claims under the Fair Employment Practices Act (M.G.L. c. 151B, s. 4). There, the SJC followed the Supreme Court's reasoning in Price Waterhouse, holding that the burden shifts to the employer once mixed motives are shown. Once the burden shifts, the employer can avoid liability only by proving that it would have made the same decision even without the illegitimate motive.

In Wynn & Wynn, the SJC also discussed the quality of evidence needed in mixed motive cases, noting that an employee must "demonstrate with a high degree of assurance” that the challenged employment decision was a “mixture of legitimate and illegitimate motives.” The SJC ultimately applied a direct evidence standard, stating there must be “some strong (direct) evidence of discriminatory bias.” The SJC made clear that direct evidence "consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.”

Subsequent to Price Waterhouse and Wynn v. Wynn, Congress amended Title VII to make "motivating factor" -- and not "direct evidence" -- the standard required in mixed motive cases. The Supreme Court noted this change in deciding Desert Palace, Inc. v. Costa, where it held that “[i]n order to obtain [a mixed motive instruction under Title VII], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘[protected class] was a motivating factor for any employment practice.’”

Unlike Title VII, Congress has not detailed the quality of evidence needed under the ADEA. As Professor Paul Secunda of Marquette University Law School has commented, "this case is going to be a tough one to predict."

The Age Discrimination in Employment Act (ADEA) and the Fair Employment Practices Act of Massachusetts prohibit employers from discriminating against workers 40 years old or older based on age. A key, often overlooked, difference between these two statutes exists. Unlike the Fair Employment Practices Act, employers that wrongfully discriminate against employees based on age are not responsible for compensatory damages for pain and suffering. The First Circuit in Collazo v. Nicholson recently held that such recovery is not available under the ADEA. In doing so, however, the court also noted Section 626(b)'s broad language allowing federal courts to award "such legal or equitable relief as may be appropriate to effectuate the purposes of the Act."

Courts have interpreted Section 626(b)'s broad language to include such injunctive relief as reinstatement or promotion where necessary to effectuate the ADEA's purpose. For whatever reason, courts continue to deny those who suffer discrimination the right to recover emotional distress damages under Section 626(b). Failing to consider the upheaval and devastation that can result from an unlawful termination constitutes a cramped interpretation of the statute.

Imagine that you just turned 55 years old. You have been with your company since graduating from college. Your son or daughter just entered college. Tuition is steep, but you've planned for this and feel ready. Your company recently appointed a bright, young CEO. During a staff meeting, the new CEO comments that the average age of employees at your company is 55. What the CEO says next is somewhat troubling: "We need young talent with fresh ideas." Despite your stellar performance and the company's well-known financial success, you find yourself terminated months later under the auspices of a re-organization.

For the first time in a very long time, your future is unclear. Despite your hard work and dedication, goals that you were poised to achieve are suddenly out of reach. You break the news to your child that s/he will need to transfer to a local university where the tuition is less expensive. Months pass with no comparable job offer. You and your spouse come to the realization that the mortgage payments are just too much. Relocation becomes necessary. The resulting financial turmoil has placed a great deal of stress on your marriage. You and your spouse begin to attend marriage counseling.

Unfortunately, the fact pattern described above is not uncommon. An Business Week article entitled Would We Fire Older Workers If We Could? paints an insightful picture of the uphill battle that older workers face. The emotional trauma that can result from age discrimination and losing one's job is not far fetched. Section 626(b) explicitly calls for equitable relief. To effectuate the purpose of the ADEA, equitable relief should be interpreted to include compensatory damages for pain and suffering.

The Supreme Court in Meacham v. Knolls Atomic Power Labs issued a pro-employee decision that will make proving age discrimination under the Age Discrimination in Employment Act (ADEA) more practical. We blogged about this case in January 2008 when the Supreme Court first granted certiorari: Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases.

In Meacham, Knolls Atomic Power Labs terminated 31 employees, all but one of whom were 40 years old or older. The employees brought suit under the ADEA and prevailed before a jury. The Second Circuit overturned the verdicts, reasoning that the burden of proof rested with the workers. In its decision, the Supreme Court vacated the Second Circuit's ruling, finding that Congress intended the burden of persuasion to fall with the employer.

To read more about the decision, please visit the New York Times article entitled, Supreme Court Eases Age Bias Suits for Workers.

Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee's right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court's decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

The Supreme Court recently rejected a legal challenge from AARP, which contended that employers that reduce health benefits for former employees who become eligible for Medicare violate age discrimination laws.

The case began approximately eight years ago in 2000 when retired county workers in Erie, Pennsylvania who had their health benefits reduced when they turned 65 claimed that such a policy violated the Age Discrimination in Employment Act (ADEA). The U.S. Court of Appeals in Philadelphia held that this policy amounted to age discrimination.

Initially, the Equal Employment Opportunity Commission (EEOC) agreed with the Appeals Court decision. In 2003, however, the EEOC determined that the ruling would incentivize employers to not offer benefits to retirees for fear of running afoul of age discrimination laws. With this concern in mind, the EEOC proposed an exception to the ADEA, allowing employers to reduce health benefits when former employees became eligible for Medicare.

In June 2008, the Appeals Court essentially reversed itself and upheld the EEOC's new policy. For more information, please visit the Los Angeles Times article entitled, Supreme Court allows retiree benefit cuts

WHDH-TV (Channel 7) is in the midst of defending an age discrimination claim. In a lawsuit filed in Suffolk Superior Court, former WHDH reporter, Michael Macklin, claims the station fired him last year after he complained of age discrimination. Macklin had been with the station for 13 years.

The suit alleges that the station's news director, Linda Miele, reduced Macklin's shifts beginning in January 2006 while simultaneously hiring several younger reporters. Just this week, WHDH announced that it would replace long-time anchor Jonathan Hall, who is in his late 40s, with Adam Williams, who is 27 years old. Hall will join the investigative unit.

Macklin's suit seeks reinstatement, compensation, attorney's fees, and court costs. To read more about Macklin's suit, please visit the Boston Globe article entitled, Macklin sues Ch. 7 for age discrimination.

Employment discrimination claims are usually proven on circumstantial evidence as opposed to direct evidence. The latter is also known as the "smoking gun," which very often does not exist. Below are two examples to illustrate the difference between these two types of evidence using, as I've been known to do, characters from the TV sitcom, The Office:

(1) Michael Scott falls under the misguided impression that the surest way to increase profits is to fire all employees above 40 years old. He promptly terminates Phyllis Lapin and provides her with a letter stating that he has enjoyed working with her and regrets having to terminate her because of her age. This is clearly direct evidence of discrimination. Dunder Mifflin is embarrassed and promptly settles out of court.

(2) Michael Scott falls under the same misguided impression. However, after discussing his scheme with Dunder Mifflin's Human Resources guru, Toby Flenderson, Michael is flabbergasted to discover that such a termination would be illegal. Rather than discharge Phyllis, Michael enlists his trusty sidekick, Dwight Schrute, to convince Phyllis to retire. Together, Michael and Dwight engage in a series of age-based comments directed toward Phyllis. In one instance, Michael asks Phyllis about her plans to retire and tells her, "There's not much time left." In another instance, Dwight starts an office pool and awards the proceeds to the employee who comes closest to guessing Phyllis' age. Unperturbed, Phyllis keeps working. Michael eventually gives in and terminates Phyllis under the auspices of poor performance. Toby is shocked and reminds Michael that he gave Phyllis an excellent performance review the month before. Michael laughs Toby off, tells him he worries too much, and assigns Phyllis' sales accounts to the receptionist, Pam Beesly, who has no prior sales experience. There is clearly circumstantial evidence of discrimination. The case against Dunder Mifflin is not air tight, but Phyllis will likely prevail.

Cases based on circumstantial evidence follow a three-step analysis. First, the employee alleging workplace discrimination must establish what is called a prima facie case. In the second example, Phyllis satisfies this burden because: (a) she falls into a protected category being 40 years old or older, (b) she suffered an adverse employment action by way of her termination, and (c) she was replaced by Pam, who happens to be at least five years younger. Having established her prima facie case, the burden now shifts to Dunder Mifflin to supply a legitimate, non-discriminatory reason for the termination. Based on Phyllis' superb performance, the company realizes that it cannot credibly claim that Phyllis was terminated based on performance. Accordingly, Dunder Mifflin claims that her position was eliminated through a re-organization. The burden then shifts back to Phyllis to show that the company's alleged rationale is pretextual.

A showing of a pretext can be accomplished in many different ways. First, the age-based comments to which Phyllis was subjected certainly raises a specter of impropriety. Furthermore, the fact that Michael terminated Phyllis based on performance, despite a very recent glowing evaluation, shows inconsistency on Dunder Mifflin's part. In addition, the changing rationale for Phyllis' termination -- from performance to re-organization -- is yet another factor commonly used to show pretext. Finally, that Phyllis' responsibilities were actually assigned to another employee, with far less experience, rings pretext.

The biggest part of any case is discovery, in which either party can request documents from the other side to prove their case or mount their defense. For example, perhaps there were e-mails between Toby and Michael in which Michael shared his ideas to increase profits by firing all employees above 40 years old. Perhaps there were also e-mails between Michael and Dwight detailing the plot to force Phyllis to resign. Such documents would be discoverable. If asked to do so, Dunder Mifflin would be forced to produce such e-mails to Phyllis and her attorney.

One might wonder: what if Dunder Mifflin claimed that such e-mails did not exist, even though they did? This is exactly what is at issue in a case against the law firm of Foley & Lardner. According to an article in Law.com entitled, Age Discrimination Suit Against Foley & Lardner Sparks Discovery Tiff, Hideko Shiroyama, who worked as a legal secretary at Foley & Lardner, is suing for age discrimination. Prior to her exit, Ms. Shiroyama took more than 800 pages documents to support her claims. Based on these documents, her attorney believes he has a road map to discover other documents in Foley & Lardner's possession to substantiate the claim that Ms. Shiroyama's termination was due to age discrimination. The law firm, however, refuses to produce those documents in discovery.

Discovery is the heart of any case. It will be interesting to see whether the court rules that Foley & Lardner's decision to withhold information is lawful or whether it amounts to an abuse of process.

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

• Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

• Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

• Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

• Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

• Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

• Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

• National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

• Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits workplace discrimination based on age against employees and job applicants who are 40 years of age or older.

Age discrimination cases before the Supreme Court this term abound. The Court recently issued another opinion in an age discrimination case; the second one in less than one week. In Federal Express v. Holwecki the Supreme Court decided what constitutes a "Charge of Discrimination" submitted to the Equal Employment Opportunity Commission (EEOC).

In Federal Express v. Holwecki, the plaintiff-employees filled out an intake questionnaire in which they alleged age discrimination and filed it with the EEOC. Attached to the questionnaire was an affidavit further detailing the discrimination and stating: “Please force Federal Express to end their age discrimination plan.” The plaintiff-employees, however, did not fill out the official Charge of Discrimination documentation.

A Charge must be filed with EEOC within 180 days from the date of the alleged violation. As an aside, the 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law, which is the case in Massachusetts.

After filing suit, the Federal District Court in Manhattan dismissed the suit on the basis that the statute of limitations had expired. In doing so, the district court took a hyper-technical approach, concluding that the questionnaire and affidavit were insufficient to constitute an official Charge. The Second Circuit Court of Appeals reversed the lower court's decision, stating that the plaintiff-employees' documentation was the equivalent of an official Charge of Discrimination. The Supreme Court agreed:

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.

For more about the Supreme Court's ruling in Federal Express v. Holwecki, check out the New York Times article entitled, Supreme Court Alters Tone in Discrimination Case.

The Americans with Disabilities Act (ADA) is one of the youngest anti-workplace discrimination statutes on the books. The ADA became effective on July 26, 1992 and prohibits employers from discriminating against qualified employees and job applicants with disabilities. In order to meet the definition of "handicap" under the ADA, the employee or job applicant must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment.

Recently, in Dewitt v. Proctor Hospital, the 7th Circuit Court of Appeals issued an interesting decision, which confirms that employees who prove the they were discriminated against because of the disability of a family member or another associate state a viable claim for handicap discrimination under the ADA. This is known as association discrimination.

In Dewitt v. Proctor Hospital, a nursing supervisor at a hospital alleged she was fired because of, among other things, the expense associated with treating her husband's prostate cancer. In the three years preceding the nurse's termination, her husband's medical expenses totaled more than $300,000. The hospital, which was was self-insured, took issue with cost of medical care, going so far as to suggest a less-expensive hospice option. In discharging the plaintiff-employee, the hospital conceded that performance was not an issue without saying much more. In concluding that the plaintiff-employee states a viable claim for handicap association discrimination, the 7th Circuit reasoned:

That the powers-that-be at Proctor were interested specifically in the high cost of Anthony’s medical treatment is obvious. Davis, Dewitt’s supervisor (and the person who ultimately fired her), pulled Dewitt aside twice in five months to inquire about Anthony’s condition. ... She also asked Dewitt whether Anthony’s doctor had considered hospice placement—a far cheaper “alternative” to the costly chemotherapy and radiation Anthony was receiving. Finally, the timing of Dewitt’s termination suggests that the financial albatross of Anthony’s continued cancer treatment was an important factor in Proctor’s decision. Dewitt was fired in August 2005—five months after her last chat with Davis and three months after Proctor warned employees about impending “creative” cost-cutting measures. ... A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.

This is an important win for employees who must care for family members with serious medical conditions.

Employees who are victims of age discrimination may be able to submit a new kind of evidence at trial to prove their case. The U.S. Supreme Court issued a unanimous ruling in Sprint/United Management Co. v. Mendelsohn, which involved the issue of “me too” witnesses at trial.

Ellen Mendelsohn, who worked for Sprint for 13 years, was 51 years old at the time she was selected for a mass layoff. During trial, she sought to introduce the testimony of former employees who saw spreadsheets with the ages of employees targeted for layoffs and who heard managers make age-biased comments. Mendelsohn’s proposed witnesses had not worked for the same immediate supervisor as Mendelsohn and had not been dismissed from Sprint at the exact same time.

The Supreme Court granted Mendelsohn's writ of certiorari on the issue of whether the federal rules of evidence allow victims of workplace discrimination to offer testimony of co-workers who may have suffered discrimination under similar circumstances, but under different supervisors.

Although the Supreme Court did not issue a definitive finding on the issue, the Court concluded that "such evidence is neither per se admissible nor per se inadmissible.” Notably, the Supreme Court stated that the 10th Circuit Court of Appeals had not fully explained her reasons for excluding Mendelsohn’s proposed witnesses. In doing so, the Court vacated the 10th Circuit's ruling and remanded the case back to the U.S. District Court in Kansas City, Kansas.

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from refusing to hire, discharge, or otherwise discriminate against employees who are at least 40 years of age. The goal of the ADEA is to promote the employment of older persons and to prohibit employers from engaging in arbitrary discrimination based on age.

This term, the Supreme Court will hear no less than five cases involving age discrimination. As reported by National Public Radio (NPR) in an article entitled
Age Discrimination Hits Supreme Court, the traditional notions of retirement are changing:

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year .... For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Novel issues abound. In Gomez-Perez v. Potter, for instance, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. After filing an age discrimination charge against her supervisors under the ADEA, Gómez alleged that she suffered retaliation. The federal district court granted summary judgment for the Postal Service, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA.

Gómez appealed to the United States Court of Appeals for the First Circuit. The First Circuit reversed, in part, holding that the United States did waive sovereign immunity, but that Section 15 of the ADEA does not provide a cause of action for retaliation by federal employers.

As reported in an article by the Washington Post entitled Public Workers' Shield Against Reprisal for Bias Claims Pondered, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia will likely interpret this issue differently from Justice Ruth Bader Ginsburg.

The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute "opposition" to sexual harassment. Click here for the Sixth Circuit's decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF'd employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer's business necessity defense. Click here for the Second Circuit's decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.

The Age Discrimination in Employment Act (ADEA) and Chapter 151B of Massachusetts protect employees age 40 years or older from workplace discrimination based on age. A recent study co-authored by Ohio State University Professor of Sociology, Vincent Roscigno, concluded that workers 50 years old or older face a higher incidence of termination. The study analyzed complaints filed with the Ohio Civil Rights Commission from 1988 through 2003 where either: (1) Probable Cause for discrimination was found, or (2) the employer settled the matter before litigation. Overall, the study evaluated over 2,181 age discrimination claims.

The study revealed that employees who were close to turning 50 years old or 60 years old had the highest incidence of complaints. Roscigno theorized that companies' desires to lower healthcare and pension costs has created a spike in age discrimination complaints among workers near 60 years old. The study also revealed a sampling of the stereotypes that older workers continue to face:

In one case a 64-year-old director of finance was discharged after being told she was too old and un-trainable for computer school.

More information about the age discrimination study can be found from OSU's website in an article entitled, Nearing Age 50 or Retirement? Watch out for Discrimination.

Forbes recently featured an interesting article written by Jan Cullinane entitled Post-Retirement Job Hunting highlights some of the obstacles that baby boomers who plan to work during retirement may face:

During 2006, the Equal Employment Opportunity Commission received 16,548 charges of age discrimination. Also, consider that the average job search was 16 weeks for people under 55 years old, but 22 weeks for those older than 55. And Texas A&M economics professor Joanna Lahey found that companies were more than 40% likely to interview a younger job seeker rather than an older job seeker.

Cullinane states, however, that the shear number of workers over 40 years old, coupled with labor shortages, may force employers to not overlook the skills and value of this cohort:

Most experts, however, are upbeat about the future of mature workers. With baby boomers (more than 76 million) retiring from primary careers, and fewer younger workers (48 million Gen Xers) to replace them, labor shortages will force companies to retain, retrain (if necessary) and value the older employee.

Time will tell whether employers will be savvy enough to discard precedent and remove what has been coined as the "gray ceiling."

Today, the Boston Business Journal featured an interesting article discussing age discrimination in the workplace. Entitled (ironically), Age does have its advantages in today's job market, the article's author, Matthew Youngquist, writes:

Whether overt or covert, age-related discrimination is a fact of life in the modern hiring process and a phenomenon beyond any plausible denial.

When it comes to avoiding liability, employers are much more sophisticated than they were decades ago. Direct evidence of discrimination these days is rare. Generally speaking, age discrimination cases are often built through circumstantial evidence. Let's take downsizing for instance. Company A decides it needs to cut a percentage of its workforce due to the downturn in the economy. 40% of Company A's workforce is 40 years old or older. During its reduction in force (RIF), 75% of those employees terminated by Company A happen to be 40 years old or older. This certainly raises an inference of age discrimination based on circumstantial evidence. The employer, of course, can always offer legitimate, non-discriminatory reasons for the disproportionate number of older workers affected by the RIF.

Youngquist's article, however, indicates that older workers may have trouble just getting their foot in the door, let alone surviving a RIF:

Not only will you almost never see a published job listing asking for more than seven to 10 years of experience, but in recent years, I've heard employers and recruiters talk about their desire to locate "early-career professionals" or "candidates with a long runway" -- both euphemisms I took to mean "older workers need not apply."

The Bureau of Labor Statistics forecasts the number workers over 55 years old growing at an annual rate of 4% -- about four times quicker than the labor force as a whole. It doesn't take an MBA to know that evaluating and rewarding employees based on their productivity, instead of their age, makes good business sense. Time will tell how Corporate America reacts to its aging workforce.

The Age Discrimination in Employment Act (ADEA), which prohibits workplace discrimination against employees 40 years old or older, celebrates its 40th birthday this month. With the ADEA came the prohibition of mandatory retirement and mistreatment in the workplace based on age.

Today, all baby boomers -- those born between 1946 and 1964 -- in the workforce are protected under the ADEA. Currently, boomers make up about one-third of the U.S. workforce. By 2010, estimates reveal that workers aged 45 to 54 will increase 21%; the number of workers aged 55 to 64 will increase 52%.

Although the ADEA has been around for nearly half a century, signs of age discrimination have shown no signs of abating. In 2006, the federal government received approximately 16,500 age discrimination complaints, collecting $51.5 million in settlements. More recently in 2007, Best Buy Co. settled a class action age discrimination lawsuit brought by 44 former IT employees in 2004.

As baby boomers inch toward retirement, age discrimination suits will undoubtedly continue to rise unless employers change their perception.