Atlanta Employment Lawyer Blog

A California jury awarded $17.7 million to a group of five older workers who were given more difficult work hours so as to injured them or frustrate them into quitting. The employers also downgraded the workers performance reviews. In Ward v. Cadbury Schweppes Bottling Grp., a seven member jury found that American Bottling Co. and Dr. Pepper Snapple Group Inc. was liable for age discrimination by requiring a manager to discriminate against older delivery drivers and for disability discrimination by failing to accommodate a driver’s disability. 6 employees were also awarded punitive damages based on the jury’s determination that the companies acted with “malice, oppression, or fraud.”

If you believe you have been treated unfairly at work, it is important to consult with an experienced Atlanta employment discrimination lawyer. Many federal laws exist to protect workers from discrimination and harassment, including Title VII of the Civil Right Act of 1964, which prohibits discrimination on the basis of race, color, sex, national origin and religion. Additionally the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act (ADAAA) protect against disability discrimination and the Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from discrimination.

According to reports, the lawsuit was filed after management at the San Fernando branch of the American Bottling Co. began engaging in a pattern of aged-based discrimination including downgrading employee reviews of older workers, giving older workers heavier workload, providing unwarranted write-ups and not supporting the older workers. Additionally, branch managers noted the need for “new blood” and referred to the locations staffed by older workers as “retirement communities.” In order to replace the older workers with younger employees, one supervisor was told to assign older workers jobs that would “injure them or force them to quit.”

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Recently a court in Ohio determined that if your boss repeatedly asks you questions such as “when are you going to retire?” or urges you to retire, these actions may support a claim under the Age Discrimination in Employment Act (ADEA). The ADEA is a federal law that prohibits discrimination against individuals over the age of 40. In Franks v. Village of Bolivar, the Northern District of Ohio ruled that a mayor’s repeated and relentless urging of a city worker to retire supported a claim of age discrimination.

If you believe you have been subjected to age discrimination at work or have questions concerning your employer’s conduct, an experienced Atlanta employment discrimination lawyer can provide you crucial advice about your potential claim and help you determine your next steps.

In Franks, a man – Gary Franks - was employed as the water and street superintendent for 33 years. As a city employee he was appointed for yearly terms, beginning and ending at the end of each calendar year. In 2011 he was not reappointed. In a complaint for age discrimination, Franks alleged that he was terminated because he was an older employee at the high end of the pay scale with benefits and payments due. He also claimed that the mayor “relentlessly badgered” him to retire. Other statements showing age bias include telling him that “he could go work on a farm” and that she would “throw a big party if he would leave his job.”

The court determined that these facts alone were enough to show direct evidence of age discrimination. He did not need to establish that other similarly situated employees were treated better. The court explained that where an employee alleges direct evidence – such as discriminatory statements – these alone may be enough to bring a lawsuit. The “McDonnell Douglas” test involving evidence that an older employee was replaced by a younger one or better treatment of a similarly situated worker is not necessary is not necessary at the pleading stage where direct evidence of discrimination is alleged.

Continue reading "Court Determines Constant Questions About Retirement Supports Worker’s Age Discrimination Claim In Franks v. Village of Bolivar " »

Older workers offer significant experience and maturity to the work force, but unfortunately age discrimination continues to be one of the fastest growing types of employment discrimination claims. In an effort to combat this growing problem, Congress passed the Age Discrimination in Employment Act (ADEA). The ADEA makes age discrimination illegal and provides legal protection for those fired – or experiencing any type of adverse employment action – because of their age. The ADEA also protects those people who complain about age discrimination or participate in another’s age discrimination claim from retaliation. The ADEA applies to people 40 years or older.

If you believe you have been treated unfairly at work as the result of your age, speaking to a knowledgeable Georgia age discrimination lawyer is an important step to determine your rights and evaluate your next steps.

In an effort to reflect recent Supreme Court rulings concerning the ADEA, the Equal Employment Opportunity Commission (EEOC) has just approved a draft ADEA final rule amending the current (ADEA). The Supreme Court decisions concern the “reasonable factor other than age” (RFOA) defense that provides that employers may have a defense to ADEA violations if they can show that an employment decision is based on “reasonable factors other than age.” The rulings, Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratories determined that the RFOA defense should be based on the “facts and circumstances” of each case and whether an employer made the best decisions in light of those facts. The amendments seek to adopt a “balancing approach” to protect workers from discrimination and protect older workers from facially neutral employment practices that disparately impact employment.

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Many people think that employers would welcome older workers on the payroll and value the experience they bring to the job. Unfortunately this is not always the case. As the American workforce ages, so has discrimination against older workers. In fact, age discrimination is one of the fastest growing types of employment discrimination.

In a recent case evaluating the discrimination claims of a 59-year-old California woman, Earl v. Nielsen Media Research, Inc., the Ninth Circuit determined that the older worker, Charlene Earl, could bring a claim for age discrimination where she was able to show specific and substantial evidence that significantly younger workers received more lenient treatment from the company for violations of the same company policies.

Age discrimination laws such as the Age Discrimination in Employment Act (ADEA) make age discrimination illegal and prohibit discrimination against anyone of the age of 40. This includes taking adverse employment actions or subjecting you to harassment because of your age.

Here, Earl was fired after working 12 years with minimal discipline. Nielsen claimed that it fired her for legitimate reasons after determining she had committed several policy violations. However, Earl countered that this was “pretext” and that the real reason she was fired was her age. As evidence she showed examples that Nielsen had treated younger, similarly situated employees better and that she was fired without first providing her a “performance improvement plan (PIP)” which was standard procedure.

An important consideration in the case was whether the employees shown were proper “comparators” with Earl. The court determined that in age discrimination cases, older employees may use evidence of better treatment of younger employees –even if they are over 40. As stated in the opinion, “although sex (discrimination) and race discrimination rely on membership in a particular class, “age discrimination is relative, the proper inquiry is not whether the other recruiter are outside the protected class, but whether they are substantially younger than Earl.” “[T]he fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.”

Continue reading "Older Employee May Bring Claim For Age Discrimination Claim Where Evidence Exists That Younger Workers Were Treated Better in Earl v. Nielsen Media Research, Inc ." »

A recent case out of the Fifth Circuit, Dediol v. Best Chevrolet, Inc., examined whether a man who endured persistent abusive remarks about his age and his religious beliefs may bring a claim under the Age Discrimination in Employment Act (ADEA) and Title VII of the 1964 Civil Rights Act. The Fifth Circuit Court of Appeals determined that based on the facts of the case, the 65-year-old man was entitled to maintain his age and religious discrimination action.

Although you would think employers are happy to have older, more experienced workers on the payroll, this is often not the case. Age discrimination is one of the fastest growing types of employment discrimination. Sadly many times older workers are subjected to teasing and harassment, and may be overlooked for hiring and promotion or subjected to other adverse employment actions. Fortunately, Congress enacted the ADEA to prohibit discrimination against individuals over the age of 40.

Here, Milan Dediol, a born again Christian worked at a car dealership in the New Orleans area. His supervisor constantly harassed him about his age, calling him “old man,” “pops,” and “old mother ******.” The supervisor also allegedly steered customers away from him and to other workers. Additionally, when Dediol left to attend a church event, his supervisor threatened to beat him up, then fired him for job abandonment.

Title VII prohibits religious discrimination. This means that your employer may not discriminate against you, or subject you to harassment or retaliation, because of your religious beliefs.

The 5th Circuit evaluated the facts, including allegations that the supervisor used age based epithets up to six times a day, and determined that this amount of name calling was sufficient to raise a claim of age-based harassment that was likely to interfere with Dediol’s work performance. Additionally, although no “smoking gun” of religious discrimination existed, all of the epithets taken together amounted to a pattern of acrimony based on Dediol’s religion. As a result, the Court of Appeals determined that Dediol could maintain both a claim for age discrimination and religious discrimination.

Continue reading "Worker Called “Pops” And “Old Man” Entitled To Bring An Age Discrimination Case In Dediol v. Best Chevrolet, Inc. " »

A recent opinion by the Second Circuit Court of Appeals found that a 59-year-old man who was fired by a car dealership and replaced by a younger man could maintain a claim for age discrimination. The worker presented evidence that he was subjected to ageist jokes by the company’s president and was replaced by a man more than 20 years younger.

In O’Reilly v. Marina Dodge, Inc., an auto dealership asserted that it fired the older employee, Terrence O’Reilly, because he was “disorganized and lackadaisical in his performance, was resistant to new initiatives, and had a poor attitude.” While these stated reasons may be legitimate, if the person alleging discrimination can show that those reasons are really “pretext” or excuses for taking unlawful discriminatory actions, he or she may be able to maintain a lawsuit.

Here O’Reilly faced numerous ageist comments from the company president and other employees such as whether he remembered his customer’s name or his way home. The court found that evidence of the jokes, along with glowing letters of recommendation, positive performance evaluations and cash bonuses were sufficient to create a question for the jury whether he had been subject to age discrimination.

The court also found that a reasonable jury could find that the auto dealership was relying on stereotypes of older people when they teased O’Reilly and that his resistance to “new initiatives” was a cover for the company’s desire to hire a younger employee based on its “unfounded assumption that a younger employee would better implement ‘new initiatives’ than an older employee.”

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The U.S. Court of Appeals for the Sixth Circuit has recently revived a man’s claim of age discrimination against the Department of Defense. In Bartlett v. Gates, a 58-year-old man – Barry Bartlett - was denied promotion to a higher level within the Defense Contracts Management Agency (DCMA) despite his 34 years of experience.

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against individuals over the age of 40. If you are older than 40, your employer may not make adverse employment decisions against you on the basis of your age and may not harass you because of your age.

Here, the official in charge of promotions selected a 39-year-old woman. While Mr. Bartlett had completed graduate work in business administration, accounting, and law, the woman had no college degree. Bartlett had also worked at the current branch for 24 years, whereas the woman had only worked 8 years at a different location.

Additionally, the supervisor had made comments suggesting Bartlett retire, and said she “was wondering if you were going antiquing or traveling or something like that because that’s what you supposedly do.”

The 6th Circuit determined that summary judgment against Bartlett was improper because he was able to show direct evidence of discrimination in the form of ageist remarks. The court noted that, “discriminatory remarks by decision-maker and other persons exerting a meaningful role in the decision-making process constitute direct evidence of discrimination.”

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As the population ages, and the economy continues to languish, more and more older Americans are putting off retirement and continuing to remain in the workplace. While many of these individuals offer long records of experience and maturity, companies often overlook hiring or promoting older employees in favor of their younger counterparts. As a result, age discrimination has become one of the fastest growing types of employment discrimination.

In a recent case, a 68-year-old attorney who was denied a job at a software firm filed a claim under the Age Discrimination in Employment Act (ADEA) asserting that he was “clearly better qualified” than the “substantially younger” applicant.

Similar to other anti-discrimination laws, the ADEA prohibits adverse employment actions against you on the basis of age – including decisions regarding hiring and firing – and protects you from harassment based on your age.

In Moss v. BMC Software, Inc., a company hired a substantially younger candidate explaining that although the older candidate – Moss - had more extensive legal experience, the successful candidate had greater familiarity and expertise with specific transactions that formed the majority of the job. Moss asserted that the company’s reasons for hiring the younger candidate were mere pretense and that and his age was a “motivating factor” in the company’s decision not to hire him. The U.S. Court of Appeals for the Fifth Circuit rejected these arguments and granted the company’s motion for summary judgment, noting that the “motivating factor” standard is not applicable to ADEA cases. Unlike Title VII discrimination, under the ADEA plaintiffs must prove age was a “but for” cause of an adverse employment action.

In granting the summary judgment motion, the court stated that the employee failed to show direct discrimination and would not “second-guess’’ the company’s business judgment about which job qualifications were most essential.

Although age may be a factor considered in an employer’s decision -making process, it cannot be the only one.

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As the number of older Americans in the work place continues to increase, so does the number of Americans facing age discrimination at work. If you are over 40, the Age Discrimination in Employment Act (ADEA) prohibits your employer from discriminating against you and protects you from harassment based on your age.

Often, discrimination occurs when one company merges with another, or goes through a reduction in force (“RIF’) and evaluates which employees to retain or terminate. If the employee’s age is used to determine whether someone should be laid off, the employee may have a claim for age discrimination.

A recent case determined that when one company buys-out another, claims based on age discrimination survive. In Phair v. New Page Corp., a 55-year-old employee – David Phair – was fired after his employer was purchased by another company. In advising the new company regarding whom to retain and whom to eliminate, the managers of the former employer raised concerns about the age of some employees and offered anecdotal evidence about who might be a good fit. Without a comprehensive review of any employee personnel files or performance reviews, Phair was offered a temporary position involving significant travel. He declined this position and was fired. An additional 4 employees, all older than 40, were terminated as well.

Several factors affected the court’s determination that Phair could maintain a cause of action against the companies. First, the District Court found that although Phair’s offered transfer was lateral, it could be considered an “adverse employment action” because it involved switching from a full time position without travel to one involving extensive travel. Further, Phair was replaced with an employee 4 years, 9 months younger than him. Because authority is split on whether this constitutes a “substantial age difference,” the court determined that an age difference close to 5 years was sufficient to raise an inference of age bias. Finally, the court held that discriminatory comments such as concern over the “aging workforce” and the fact that statistically older workers were overrepresented in the group of employees let go was sufficient to create a triable issue on whether age was a “but for” factor in Phair’s termination.

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The U.S. Supreme Court, in a June 18, 2009 decision, has limited a claimant’s ability to prove an age discrimination case in court. The case, Gross v. FBL Financial Services, Inc. (08-441), decided by a 5-4 margin, decided a burden of proof issue that had never been completely resolved since the passage of the ADEA in 1967.

The question involved what happens in “mixed motive” cases, where there may have been some “legitimate” (i.e., non-discriminatory) factor, in addition to age, that played a part in the employer’s action. In Gross, for example, the plaintiff was demoted as part of a restructuring, but there was evidence age bias played a part in the decision.

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You got laid off or fired. You’re over the age of 50, or even 40. Younger people, some of whom you’ve trained, get to keep their jobs. Is it good business or age discrimination?

ABC News is tracking this issue, and reports a great increase in age discrimination filings with the EEOC. It may be that companies are using the economy as an excuse to get rid of workers that they couldn’t fire under more normal economic circumstances.

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