Bill Egan writes:

Cancer treatment
Copyright: tashatuvango / 123RF Stock Photo

Aside from whistleblower and highly offensive sexual harassment cases, there may be no claim that elicits the protective instincts of the average jury more than disability discrimination cases, especially where the disability is cancer-related.  Employees with disabilities who are terminated without demonstrable cause often are seen as suffering the double indignity of dealing with whatever hardship their disability imposes and the termination of their employment because of it.  Adept attorneys paint a picture of the employer kicking an employee when he’s down and when you place the outcome of such a case in the hands of average Americans (i.e., a jury), and you have the makings of a big verdict.

Such was the case of Axel v. Fields Motorcars of Florida, Inc., where a Mercedes dealership terminated a 71-year-old used car and wholesale manager, Michael Axel, who had been diagnosed with kidney cancer in 2010.  Following surgery, the cancer metastasized to his lungs.  Axel elected to undergo an experimental treatment that came with very unpleasant side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet.  Evidence was introduced that Axel’s supervisor expressed frustration with Axel because, among other reasons, he was “not getting real doctors treatment” but “other holistic or crazy things.”

The dealership terminated Axel in 2014, allegedly for making misrepresentations in 2004 on paperwork needed to obtain an auto auction access card for his son, a non-employee of the dealership who occasionally assisted Axel in transporting used cars to the local auto auction.  The son was not accused of misusing this authority other than to move vehicles.  In fact, he was employed by the dealership at the time of his father’s termination.   The misrepresentation on which the termination allegedly was based was discovered ten years after the fact, leading to the decision to terminate.  Pre-trial submissions did not reveal much in the way of other performance deficiencies by Axel.

The jury apparently rejected the dealership’s stated reason for the termination as pretext for disability discrimination.  It found that Axel was fired because of his disability in violation of the Florida Human Rights Act and awarded Axel $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages.  Notably, despite allegations of stray remarks reflective of possible age animus, the jury found that there was no age discrimination in the decision to terminate Axel’s employment.

A runaway verdict?  Perhaps, but verdicts of this nature and magnitude seem to occur more frequently in disability discrimination cases. This jury’s rejection of the age discrimination claim demonstrates a thoughtful and discerning assessment of the evidence presented.  This case serves as a reminder that disability discrimination cases stand in a class of their own and must be handled with utmost care and discretion.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

We have spoken frequently about age discrimination cases on this blog.  Whether it be “code words” being used or more direct comments on age, these can all be part of a claim of discrimination.  Before anyone questions this post, I just want you to know that the idea for the post came from my assistant Chrissie as she wanted to celebrate reaching her half-century mark, or as our office managing partner described it, her 30th anniversary of her 20th birthday.

Here’s a little video to show that you are never too old to try a new job.

http://www.nbc.com/saturday-night-live/video/police-recruit-fitness-testing/n11310

Happy Birthday, Chrissie!  She’s 50 and she likes to kick.

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Reorganization, reduction in force (“RIF”), merger of departments – these are only a few reasons which employers give when firing an employee – and which is frequently alleged to be — and found to be a pretext in violation of Title VII, the ADEA or other anti-discrimination laws.

And also setting a performance bar too high to achieve, intending the employee to fail.  

All employment lawyers – both employee and management side – have encountered these scenarios.

age discrimination : Concept image depicting employment ageism and discrimination for people over fifty. Selective focus on the road text. Copy space.

A new Age Discrimination in Employment Act (“ADEA”) case filed by the EEOC illustrates the nature of such an alleged pretext.  The EEOC claims that Blinded Veterans Association (“BVA”), a non-profit Washington, D.C.-based service provider to blind veterans fired two longstanding employees because of their age.   (NB:  Another example of the EEOC targeting organizations “whose charter is to help people” or “who should know better.”  Readers are hopefully familiar with our many such posts, usually involving the ADA).

Link:  http://www.eeoc.gov/eeoc/newsroom/release/12-12-14.cfm

One 76-year old employee with 34 years tenure was asked repeatedly when he would retire.  When he said that he had no such plans, BVA (according to the EEOC) “announced that it was ‘reclassifying’ certain jobs, including [plaintiff’s], and that he needed to compete for one of the newly-created national field service officer positions if he wanted to remain employed by BVA.  In order to compete for one of the newly created jobs, BVA imposed on Martinez arbitrary and unrealistic requirements.”

A “bar too high to reach,” which led inexorably (and intentionally) to failure, is what this alleged “pretext” might be called, if proved true.

unfair race : You are pushing a flat cube while your competition is pushing spheres marked Them, symbolizing an unfair advantage others have in a race or the game of life, preventing you from success and achiving goals Stock Photo

The second employee, 70 years’ old with 15 years tenure, was asked repeatedly “When are you going to retire?” and “When are you moving to Florida?” 

Refreshing, don’t you think?  At least with the second employee the employer was honest in its age animus — thereby providing the employee direct evidence of age discrimination, without the messy and complicated pretext.

Takeaway

An EEOC attorney said it best:  “Targeting older workers under the pretext of a reorganization doesn’t fool anyone – it’s clearly age discrimination, and clearly unlawful.” 

 

We have written little about the requirement in Title VII (and the other anti-discrimination  laws) that a plaintiff-employee has a duty to mitigate damages.  This may be because many lawyers backburner this issue in their zeal to deal with the merits of a case, or perhaps they ignore (repress?) this issue because it presupposes that the plaintiff has or will prevail.

Whatever the reason, it can be a powerful weapon for employers to substantially reduce damages if they can show that the employee has failed in this duty.  And oftentimes an expert can be extremely helpful.

What is the duty to mitigate?

It is an old legal concept that a plaintiff may not recover damages for any harm that she could have avoided or minimized with reasonable effort.  In employment law, it is generally the rule that an employee who sues for what may be referred to broadly as “wrongful discharge” (although this precise cause of action is not recognized in NY) must show that she has taken all reasonable steps to minimize damages by seeking other employment, or else her damages may be reduced accordingly.

job seeking : 3d people - man, person with magnifying glass searching for job.

The EEOC has stated in a published Guidance that “if the respondent [employer] can prove that the complaining party [employee] failed to exercise reasonable diligence to mitigate his/her damages and could have avoided or minimized such damages with reasonable effort, the damages may be reduced accordingly.”

However, it is the employer’s burden to show that the employee failed to exercise reasonable diligence to mitigate her damages, and as the EEOC has put it, parsing the relevant caselaw:

— the employer has the burden of showing that the plaintiff failed to make reasonable efforts to find work to mitigate her damages when seeking backpay;

—  the burden is on the employer to prove, as an affirmative defense, that the employee failed to mitigate damages when seeking lost wages; and

—  the employer has the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence in mitigating damages on the part of the plaintiff.

The key when it comes to actual litigation is the notion that the plaintiff has the duty to “mitigate” lost wages by using “reasonable diligence” to seek “substantially equivalent” employment.  But what does that mean?  What is substantially equivalent” employment, and what is “reasonable” when it comes to “diligence” in job hunting, expecially in this iffy economy?

Does a plaintiff have to take any job?  The first job offered?  Any job in her “field?”  Any job in a related “field?”

Does a plaintiff have to show a list of hundreds of prospective employers which she contacted?  And what amount of effort must she show in her “diligent” job search — must she show hours of effort for each job applied for?

job seeking : Several business people wander through a maze looking for a job

As noted above, a lot of lawyers pay little attention to these thorny issues, assuming that the answers to these questions are obvious.  Not so – and the payoff for focusing attention on these issues can be enormous for the client.

We shall examine this in greater depth in a follow-up post or two.

 

We recently posted that the BBC reported that numerous age discriminatory ads appear on the UK government’s Universal Jobmatch website, seeking “recent graduates” or “young graduates.”

One UK ad read: ”We are always looking to recruit talented, ambitious young people who may fit well into one of our progressive thinking departments such as media, including social media, TV, press officer or other departments such as office administration.”

Now The New Zealand Herald has reported on an investigation revealing “the surprisingly high number of employers advertising for ‘young’ staff, which could be in breach of the Human Rights Act.”

energetic people : Collection of active junior kids jumping

“Publishing terms such as recent or new graduate could be breaching anti-age discrimination laws because it implied employers were after younger workers,” the same as job sites “advertising for new or recent graduates.”

The NZ EEO Commissioner stated:  “While there are some exceptions in the Human Rights Act for age discrimination in employment, such as where being of a certain age or in a particular age group is a genuine occupational qualification – for example managing licensed premises – it is good practice not to ask about a job applicant’s age or to limit the age of prospective job applicants.”

While “new” or “recent graduate” was not necessarily discriminatory, according to one local lawyer, the article noted that another employment lawyer said that “advertisers often used descriptions such as ‘fresh’ or ‘new ideas’ to avoid mentioning age.”

Avoid Mentioning Age As To Older Employees

“Avoid mentioning age” – boy, have we spent a lot of time and effort collecting descriptions of older employees which do not explicitly mention age — which the employees have later used in court as direct evidence of age discrimination under the ADEA.

older employee : A view of a senior engineer training a newly hired employee. Stock Photo

See our posts listing:  “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “bag of bones,” “not enough runway,” and “a little long in the tooth.”

Avoid Mentioning Age As To Younger Employees

As to words or terms used by employers to describe younger employees  The New Zealand Herald helpfully listed “Examples of discriminatory or potentially discriminatory ads found on Seek and Trade Me:”

* Young and vibrant waiting staff wanted

* We’re looking for vibrant salespeople with a young, passionate energy

energetic people : Handsome businessman in suit leaping over green grass with cloudy sky at background

* This job (curtain cleaning assistant) could suit a young person

* We are looking for a motivated young chef

* We’re in growth mode recruiting for a young and ambitious Wellington-based Diesel Mechanic

* If you’re a motivated, talented young marketer

* An administrator for an early learning centre who is “young at heart but mature in experience”

* We’re on the hunt for young, fit and competent carpenters for immediate starts

* An opportunity exists for a creative and talented young chef

* Young person willing to learn – mechanic technician

* Apprentice carpenter builder wanted – would suite keen young person or someone who is already an apprentice

* We are looking for a young person to become part of our hard working team of boat builders as a labourer general assistant

* Due to growth, we have a vacancy for a keen young person to join the team – junior driver store person electrical wholesaling.

 

We have compiled a long list of words or terms used by employers to describe older employees — which the employees have later used in court as direct evidence of age discrimination under the ADEA.

Add another word to the list, which includes “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “bag of bones,” “not enough runway,” and “a little long in the tooth.”

Meloney Sallie-Dosunmu, a corporate HR director in the Allentown, PA area, reports:

“I was on a conference call one day and heard someone refer to some other colleague’s mistake as ‘senioritis.’

WHAT????”

seniors : Portrait of a happy senior man smiling isolated on white Stock Photo

Way back in September 2013 we wrote that age cases would not be age cases if not for the vast number of creative ways employers refer to employees as “old.”

We reported on cases in which the following terms were used:  “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “is like a bag of bones,” “not enough runway,” and “a little long in the tooth.”

In that same post we discussed an appeals court decision which was reported at the time in which a 76-year old security guard in Missouri claimed that he was fired because of his age, and his direct evidence of this was his supervisor’s comment to him, among other things, that he “needed to hang up his Superman cape.”

New one for our list.

old cape man : Full length portrait of an elderly in superhero costume isolated on white background

The appeals court panel held 2-1 that the employee stated a prima facie case of age discrimination.

But wait!

We have just learned that the full bench of 12 federal appellate judges re-heard the case, and by a 9-3 vote reversed the prior decision – holding that while plaintiff indeed proffered direct evidence of age animus, such as the “Superman cape” comment, he nonetheless failed to show that the reasons given for his firing were pretextual.

Takeaway:  Don’t pick up your erasers — there was nothing in the new decision that would lead us to delete this “Superman” comment from our ever-growing list of age-related comments.

The BBC has just reported that numerous age discriminatory ads appear on the UK government’s Universal Jobmatch website, which is used by millions seeking jobs.

“Recent graduates” are sought in ads by hundreds of employers, such as “My client is recruiting a recent graduate to join their extremely busy team. You should be looking for a career, have good customer service skills and good administration skills including data entry.”

Some ads are bolder and seek “young graduates.”

We would have to agree with the UK lawyers interviewed that such ads would be found discriminatory.  At least in the US, where they would violate the ADEA and state and local laws which forbid age discrimination.

kids : Portrait of young boy thinking his aspirations Stock Photo

Another ad read:  “We are always looking to recruit talented, ambitious young people who may fit well into one of our progressive thinking departments such as media, including social media, TV, press officer or other departments such as office administration.”

A spokesperson for one leisure industry company with a similar ad used “business necessity” language in justifying such an ad, stating that (as paraphrased in the article) “he could see nothing wrong with it because in the leisure industry people needed to be young and fit.”

young people : portrait of large group of young people in summer time Stock Photo

The UK government must get its House in order.

 

As I anxiously await my new iPhone 6 (which should be arriving today), I was reminded of an article I had seen several months ago on Forbes.com.  The article, entitled “Why Successful People Never Bring Smartphones Into Meetings” reported on some interesting research conducted by the University of California’s Marshall School of Business.

The key findings were not surprising.  Well, maybe not surprising to me as I do a lot of employee training and speaking engagements and have a special sympathy for anyone trying to capture the attention of people glued to their smartphones.

20102681_sThe key findings:

•86% think it’s inappropriate to answer phone calls during formal meetings

•84% think it’s inappropriate to write texts or emails during formal meetings

•75% think it’s inappropriate to read texts or emails during formal meetings

•66% think it’s inappropriate to write texts or emails during any meetings

•At least 22% think it’s inappropriate to use phones during any meetings

The interesting (although not surprising) point to me is that opinions varied greatly by age.  Millennials were three times less likely to think it was inappropriate to check text messages in emails in informal meetings.  I can imagine this being a bone of contention for those older employees who believe this is inappropriate and how this issue could quickly devolve into an “age” issue.

What do you think? Should employers ban smartphone use in meetings?

 

Someone failed to advise a NY legal staffing company about a little thing known as the ADEA – the Age Discrimination In Employment Act.

Apparently it “rejected a 70-year-old attorney when it discovered her age and told her it would never hire her after she questioned if the rejection was because of her age.”  This, according to a new suit filed by the EEOC.

older lawyer : Older business woman sitting at desk reading in a book. Idea for a learning concept in the age.

After the attorney accepted a temporary work project, the company asked for and was told her date of birth, and within 90 minutes she was told her that the offer was withdrawn.  The attorney asked whether this was because of her age, and the company allegedly told her that “she would be placed on a ‘do not use’ list and she need not apply for future work assignments with [the company].”

One EEOC lawyer said that “It is time to send a clear message to employers: Neither age discrimination nor retaliation for making a discrimination complaint will be tolerated.”

A second EEOC lawyer said: “More and more Americans are working past the age of 65, and they have a right to do so free of ageism.”

Age discrimination claims are rising fast these days — the aging of the population ensures that employers who are not familiar with the ADEA will be targeted by an ever more aggressive EEOC.

In any event, as we have said in our prior posts, employers are missing out on a valuable resource — experienced employees — if they seek to eliminate them, legally or illegally.