Category Archives: Age Discrimination in Employment Act

‘Apprentisaurus’ Age Claim Is Now Extinct

A court decision out of Illinois involved a slew of age-discriminatory comments from co-workers.

Several co-workers called Jeffrey Kawczynski the “apprentisaurus” and one wrote the epithet on his work helmet, Kawczynski said.  Others referred to him as “old man” and “old Jeff,” and even used crude, demeaning comments like “dog nuts” and “pig pen.” And one supervisor asked him his age.

Kawczynski claimed to be tortured to the point of depression by this treatment, and stopped work as a result.  But the comments were not enough for him to survive summary judgment on his age discrimination and hostile work environment claim against F.E. Moran, Inc., his employer.

Why not?  Let us be good students and count the ways, which help explain why every unpleasant work experience does not rise to the level of a viable lawsuit.

First, most of the comments were by co-workers and not supervisors, and stopped years before his employment ended.

Second, he never reported the comments to his union representatives or company human resources, and admits that the comments did not affect his work and eventually stopped.

Third, the supervisor who asked about his age was not a decision-maker at the time his termination ended.

Fourth, Kawczynski admittedly chose not to return to work in 2013 – he was not fired, even if he anticipated termination coming at some point in the future.  As such, he did not suffer an adverse employment action.

Fifth, and finally, many of the hostile comments did not suggest animus against him based on age – “pig pen” and “dog nuts” certainly are not desirable nicknames, but they also are not ageist.

So . . . before panicking about the next claim of outrageous language at work, think about the lessons from “Apprentisaurus,” break down the details alleged, and don’t go “dog nuts.”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department atFlaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Is Being Forced to Blow Out the Candles an OSHA Violation?

Businesswoman blowing out birthday candle

We employment lawyers tend to be sensitive folk, but I never considered birthday parties as a source of litigation until now.

Karen Michael, a Virginia employment lawyer, reports on recent lawsuits relating to workplace birthday celebrations, including (1) a worker who claimed age discrimination relating to her co-workers teasing her about her age at her 50th birthday party, and (2) two EEOC suits on behalf of Jehovah’s Witness followers who felt that celebrating birthdays was a “sin.”

Hmmm. The above lawsuits may be legitimate (employees should not be harassed because of age, and employers must reasonably accommodate the religious beliefs of their employees), but I wonder whether I should sue my older brother for intentional infliction of emotional distress. He annually taunted me during my childhood parties, maliciously altering the lyrics after “Happy birthday to you,” to state and falsely allege that: (1) I lived in a zoo, (2) I looked like a monkey, and (3) I smelled like one, too.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

“You’re old enough to retire, right?”

Get somebody at your company to say these magic words three times, click your heels, and your company may be liable for a $2.5 million jury verdict for age discrimination.

That’s the lesson of Castelluccio v. IBM Corp., decided last week in Connecticut.

James Castellucio worked at IBM from 1968 through 2008, including service as a vice president overseeing 2,500 employees. But when IBM assigned a new supervisor to Castellucio, the ageist comments started and soon thereafter he was fired at age 61. The new supervisor admitted at trial that she knew asking Castellucio about his retirement plans – after he said he wanted to stay at IBM – was illegal, yet she did it three times.

That was enough for the jury – which awarded the $2.5 million verdict – and the judge – who ruled the comments were direct evidence of age discrimination, and tacked on a $1.2 million award of attorneys’ fees. Our guess is that Castellucio can retire now.

Although it may seem surprising, we frequently see situations in which managers use some form of the word “retirement” when dealing with the displacement of older workers. Don’t use that word. Do not assume a worker in his or her 60s or 70s wants to retire. And don’t do anything you know is illegal three times in a row.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

IBM Takes Novel Approach to Dodge Age Disclosures.

Citing “privacy” concerns, IBM has stopped disclosing Older Worker Benefit Protection Act (OWBPA) information identifying job titles and ages of those being separated and retained during recent layoffs, according to published reports by Bloomberg.

To get around the mandatory OWBPA disclosure requirements for the waiver of claims under the Age Discrimination in Employment Act (ADEA), which can reveal disproportionate impacts to older workers, IBM does not require the release of ADEA claims as part of its severance packages, but it does require that employees who accept the severance packages agree to try their age discrimination claims through binding arbitration, Bloomberg reports. No word of any legal challenges to this novel approach, but we expect that most employers would not like the idea of paying out severance, and then having to face arbitration claims – and added liability exposure – for age discrimination. Still, it may be an effective tactic to consider to shield information about the ages of affected employees in large reductions in force.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Employer wins age case, despite mandatory retirement policy

Most cases are won or lost on the facts, but that chestnut minimizes the importance of zealous advocacy and persistence in legal battles.

Tokah v. Foxco Insurance Management Services, Inc., decided last month by the U.S. Court of Appeals for the Third Circuit, illustrates why first impressions based on a few “bad facts” do not mean the employer should give up. In Tokah, the plaintiff put forward three seemingly damning facts to support her age discrimination claim:

  • She was fired at age 66 after 14 years of service for the company, and despite not having any performance problems.
  • The company had a “mandatory” retirement policy in its Employee Handbook that required retirement after age 65.
  • A younger person was retained to perform the plaintiff’s job duties, and plaintiff was required to train her to do the job.

Faced with this evidence, especially the mandatory retirement policy, many companies would just say “get out the checkbook” and settle. But Foxco and its lawyers did not. They believed these facts did not tell the whole story, and they fought the case through a jury trial (which Foxco won) and an appeal (which Foxco also won, this month).

How did Foxco do it? Apparently through good old-fashioned hard work and compelling witness testimony to develop and explain the facts justifying the termination for non-discriminatory reasons. Instead of conceding the decisiveness of the plaintiff’s facts, Foxco showed that:

  • The mandatory retirement policy was not enforced and the decision-maker in the termination was not even aware of it until the plaintiff pointed it out.
  • Due to a substantial decline in revenues, the company had to terminate five employees, including plaintiff, and several were younger, showing the lack of an age-based motivation.
  • The retained employee had skills that the plaintiff lacked, justifying the company’s decision to retain her instead of plaintiff.

In the end, we also assume there were credibility judgments by the jury that favored Foxco. Again, this is a credit to the defense lawyer and the company, who obviously spent the time to properly prepare for trial and show why its stated reasons were bona fide, and that the plaintiff was not fired because of her age.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

The Octogenarian Doctor Will See You Now.

Clients occasionally call to ask whether the age discrimination laws stop applying at some age – 65, 70, 75 or 80. For example, is it safe to force a physician to retire when he reaches age 81?  What do you think?

The answer is not as simple as one might guess. First, the federal law, the Age Discrimination in Employment Act (ADEA), originally protected workers up to age 65 – allowing discrimination against those older. In 1978, Congress raised the age ceiling to 70, and in 1986 Congress eliminated the age ceiling altogether.

So the answer is no age limit, right? Well, not quite. The ADEA allows age requirements and limits in some occupations, such as firefighters, law enforcement officers, and certain federal jobs, and even includes a rarely used exception for “bona fide executives or high policy makers” who have attained age 65 and have an annual retirement benefit of at least $44,000.

And for businesses with fewer than 20 employees, state anti-discrimination laws often have loopholes for certain professions. In New Jersey, for example, the New Jersey Law Against Discrimination allows employers to refuse to hire or promote any person over age 70, and the state has age requirements for certain professions, including those in healthcare.

All that being said, it’s still not a good practice, generally, to terminate an employee simply because of his age. As for that 81-year-old doctor, well, that’s a real case. In Hurkin v. Woodward Res. Ctr., an Iowa state healthcare center learned this lesson the hard way last month when it had to pay Dr. Zane Hurkin $450,000 (following a jury verdict in his favor) after he proved he had been fired because of his age.

This age stuff is not just an interesting legal issue. Recent reports indicate that the number of people aged 65 and up still working has surged in the past 20 years from 12.1 percent to 16.1 percent, and that by 2019, workers 55 and older will comprise 25 percent of the workforce. We can all hope this workforce is like fine wine, getting better with age.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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