Posts Tagged ‘Age Discrimination in Employment Act’

EEOC: Older Foreman Shown Door Due to Bias

In the same week that the Equal Employment Opportunity Commission heard testimony on the persistence of bias against older workers, the commission filed suit on behalf of a production foreman who allegedly was pushed out of his age by a new superintendent.

According to the EEOC, Fort-Worth-based Atlas Resource Partners fired Production Foreman William Hutto despite his record of strong performance for the company. Prior to his termination, Hutto had never been disciplined. The EEOC expects to present evidence that Mr. Hutto was a strong and capable worker who was highly regarded by his peers.

The EEOC claims that the production superintendent who terminated Hutto also made ageist comments regarding Hutto’s co-workers, including the repeated remarks about being “too old to do the job.”

“Mr. Hutto had the work experience and the ability to bring Atlas continued success, but top management unlawfully opted for youth over experience without respect to qualifications,” said EEOC Trial Attorney Joel Clark.

EEOC Dallas District Office Regional Attorney Robert A. Canino added, “This is a straightforward case of someone being put in charge who arbitrarily decides to pull the plug on someone else’s job. When that kind of action is based on a worker being in his 50s, rather than on qualifications, productivity or conduct, it not only fails to take advantage of some of a company’s best assets, but violates federal law.”

Atlas Resource Partners is a business that develops, acquires and manages oil and gas properties, with an interest in over 14,000 wells across 12 states, including Texas.

On June 14, the day before the suit was filed, experts told the EEOC that persistent age discrimination and stereotypes about older workers continue to channel older workers out of the workforce, limiting further economic growth. The views were expressed during a  public meeting today entitled “The ADEA @ 50 – More Relevant Than Ever,” held at agency headquarters in Washington, D.C.

The meeting was held to mark the 50th anniversary of the passage of the ADEA in 1967.

For more on what was said at the meeting, click here.

Agency’s Rejection of Applicant “Born in 1945” Lands It in Federal Court Opposite the EEOC

And speaking of age discrimination, a New Jersey staffing firm is in hot legal waters with the Equal Employment Opportunity Commission over its alleged refusal to refer a job applicant because of his age.

In its lawsuit, the EEOC charged that after Princeton-based Diverse Lynx learned of the applicant’s date of birth, the company sent the applicant an email stating that he would no longer be considered for the position because, according to the email, he was “born in 1945” and “age will matter.”

“Federal laws plainly prohibit employment agencies and staffing firms from engaging in age discrimination,” said Kevin Berry, the EEOC’s New York District director. “The firm told the man, ‘age will matter.’ Actually, the only things that matter are abilities and qualifications, and the EEOC is here to help make sure that’s the way it is in American workplaces.”

DiSavino added, “Apparently Diverse Lynx wasn’t very diverse in its referral practices. Sometimes the EEOC must take action to remind employers that age discrimination is inexcusable and unlawful.”

EEOC filed the suit against the firm on May 9.

EEOC Sues Restaurant on Behalf of Experienced Applicant Told He Couldn’t “Maximize Longevity”

Use the phrase “maximize longevity” in the hiring process could be a smokescreen for age discrimination.

Or so the Equal Employment Opportunity Commission no doubt will argue in its age discrimination lawsuit against a Ruby Tuesday’s restaurant in Florida.

According to the EEOC’s suit, filed on May 17, the company declined to hire a qualified applicant with over 20 years of experience in the food and beverage industry for a general manager position at its Boca Raton restaurant. In response to an inquiry by the applicant as to why Ruby Tuesday declined to hire him, the company informed him it was seeking a candidate who could “maximize longevity.”

“In the South Florida area, we represent the interests of many different people,” said Michael Farrell, director of the EEOC’s Miami District Office. “Age cannot be a factor in whether or not someone can earn a living.”

Restaurant Serves Up $12M in Settlement of Nationwide ADEA Lawsuit Over Hiring Practices

Texas Roadhouse wasn’t going to take its changes with a jury a second time over allegations that it wouldn’t consider applicants over 40 and over for “front of the house” positions such as hostess and server.

The national Kentucky-based restaurant chain just agreed to fork out $12 million to settle an age discrimination in employment act lawsuit.

The Equal Employment Opportunity Commission filed suit against the company in 2011, accuses it of engaging in a nationwide pattern and practice of illegal age discrimination by hiring only younger-looking people in “front of the house” positions like hostess and server.

After a four-week trial earlier this year, the case ended in a hung jury. It was scheduled for retrial on May 15.

The chain apparently didn’t want to risk going to trial again, so it agreed to the hefty settlement.

Under the settlement, affected individuals age 40 and older who applied to Texas Roadhouse for a front-of-the-house position between Jan. 1, 2007, and Dec. 31, 2014, can apply for relief.

“I am pleased to see this matter come to a mutually agreed-upon resolution,” said EEOC Acting Chair Victoria A. Lipnic. “As we mark the 50th anniversary of the Age Discrimination in Employment Act (ADEA) this year, it is as important as ever to recognize the very real consequences of age discrimination and the need for job opportunities for older workers.”

Here’s my writeup on the suit from 2011.

Out Front: Restaurant Barred Older Applicants From Server, Host Jobs, EEOC Charges in Suit

Older Americans have a tough enough time getting hired when they are up against younger competition. The last thing they need is to have an employer actively refuse to consider them because of their age.

But according to the Equal Employment Opportunity Commission, that’s what a Houston-based restaurant change did.

EEOC’s lawsuit said that since at least 2008, Bayou City Wings has been discriminating against a class of applicants for “front of house” positions, such as food servers and hosts, by failing to hire them because of their age (40 years and older).

According to EEOC’s lawsuit, Bayou City Wings’ upper management instructed other managers not to recruit and hire older job seekers and disciplined and terminated a manager who refused to comply. The agency also charged that since at least 2008 to about November 2013, the company failed to preserve employment records, including the job applications of unsuccessful applicants, in violation of federal law.

Here’s more on the lawsuit.

 

EEOC Issues Retaliation Enforcement Guidance

Any questions on what behaviors constitute retaliation under federal employment discrimination laws and what recourse is available to persons who believe they’ve been retaliated against were answered today when the Equal Employment Opportunity Commission released its final enforcement guidance on retaliation and related topics.

Among the highlights, from a Q&A sheet issued along with the guidance:

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws. Asserting EEO rights is called “protected activity.”

Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy itself could be unlawful if it discourages the exercise of EEO rights.

In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:

  • An individual engaged in prior protected activity;
  • The employer took a materially adverse action; and
  • Retaliation caused the employer’s action

Taking adverse action for discussing compensation may implicate a number of different federal laws, whether the action is pursuant to a so-called “pay secrecy” policy or is simply discipline of an employee in an individual case.

Under EEOC-enforced laws, when an employee communicates to management or coworkers to complain or ask about compensation, or otherwise discusses rates of pay, the communication may constitute protected opposition under the EEO laws, making employer retaliation actionable based upon the facts of a given case. Moreover, talking to coworkers to gather information or evidence in support of a potential EEO claim is protected opposition, provided the manner of opposition is reasonable.

In addition, there are also other federal protections for discussions related to compensation. For example, under Executive Order (E.O.) 11246, as amended by E.O. 13665 (Apr. 8, 2014), enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discharging or otherwise discriminating in any way against employees or applicants who inquire about, discuss, or disclose their compensation or that of other employees or applicants. See https://www.dol.gov/ofccp/. Moreover, the National Labor Relations Act protects non-supervisory employees who are covered by that law from employer retaliation when they discuss their wages or working conditions with their colleagues as part of a concerted activity, even if there is no union or other formal organization involved in the effort. See https://www.nlrb.gov/.

Even if protected activity and a materially adverse action occurred, evidence of any of the following facts, alone or in combination, may undermine a claimant’s ability to prove it was caused by retaliation. For example:

  • The employer was not, in fact, aware of the protected activity.
  • There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as:
    • poor performance;
    • inadequate qualifications for position sought;
    • qualifications, application, or interview performance inferior to the selectee;
    • negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual);
    • misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
    • reduction in force or other downsizing.
  • Similarly-situated applicants or employees who did not engage in protected activity were similarly treated.
  • Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive.

The guidance itself is found here.

EEOC: Executive at Midwest Company Denied Job Because He Was Not in “Ideal Age Range”

The executives running Seymour Midwest, a Warsaw, Indiana, hand tool manufacturing company, need remedial lessons on the law against age discrimination, according to a just-filed lawsuit against the company by the Equal Employment Opportunity Commission.

According to the EEOC, the company violated the Age Discrimination in Employment Act “when it rejected a 58-year-old executive upon learning that he was older than the company’s ideal age range of 45-52.”

The EEOC alleges  Seymour Midwest selected Steve Maril, from a pool of applicants for its senior vice president of sales position, to participate in an initial, email-based interview. In addition to questions about Maril’s experience and willingness to relocate, the company asked whether Maril was within its ideal age range of 45-52. When Seymour Midwest learned that Maril was older than its ideal age range, the company refused to hire him.

If proven, this is about as blatant an ADEA violation as I’ve seen in some time.

Read more about the EEOC’s lawsuit.