ADEA Category Archives — New York Employment Attorneys Blog Published by New York City, NY Employment Discrimination & Employment Rights Lawyers

Published on: February 20, 2019

Job Applicants Are Not Protected Under The ADEA On The Theory of Disparate Impact

In Kleber v. CareFusion Corporation, CareFusion Corporation (“CareFusion”) denied job applicant, Dale Kleber, 58-years-old, the position of senior in-house counsel. Mr. Kleber sued CareFusion for age discrimination, claiming that CareFusion’s policy of not hiring applicants with more than seven years of experience violated the Age Discrimination in Employment Act (“ADEA”). The district court dismissed the claim, concluding that the ADEA did not allow job applicants to bring a disparate impact claim against a prospective employer. A divided panel of the Seventh Circuit reversed the district court’s decision, and CareFusion appealed to the Seventh Circuit en banc, which upheld the district court’s decision.

In March 2014, Mr. Kleber applied for a position as senior in-house counsel at CareFusion. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” Mr. Kleber was 58 at the time and had more than seven years of relevant experience. CareFusion, however, passed over Mr. Kleber and instead hired a 29-year-old applicant who met, but did not exceed, the prescribed experience requirement. Mr. Kleber sued, claiming that CareFusion’s policy of establishing the maximum years of experience for jobs, discriminates against older workers in violation of the ADEA, on the theory of disparate impact. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group. On January 23, 2019, the Seventh Circuit en banc heard the case but did not consider whether CareFusion Corporation discriminated against Mr. Kleber on the basis of age because it found that § 4(a)(2) of the ADEA did not apply to Mr. Kleber at all.

The Seventh Circuit reviewed the original language of the statute, which “makes it unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The Court held that this language “plainly demonstrates that the requisite impact must befall on the individual with ‘status as an employee’” and does not extend to applicants for employment. Further, “common dictionary definitions confirms that an applicant does not have an employment status,” explained the Court. As such, the Court reversed the panel’s decision and affirmed the district court’s decision to dismiss Mr. Kleber’s claim.

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Published on: February 14, 2018

Sexual Orientation and Gender Identity Discrimination under the New York City Human Rights Law

By The Harman Firm

By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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Published on: July 7, 2017

U.S. Supreme Court Declines to Address Scope of ADEA Disparate Impact Claims

By The Harman Firm

Last week, on June 26, 2017, the U.S. Supreme Court denied plaintiff Richard Villarreal’s petition for a writ of certiorari, declining to review the U.S. Circuit Court of Appeals for the Eleventh Circuit’s decision in Villarreal v. R.J. Reynolds Tobacco Co., a case arising under the Age Discrimination in Employment Act of 1967 (ADEA). In Villarreal, the court was asked to consider whether the ADEA permits job applicants who have been disadvantaged in the hiring process because of their age to bring disparate impact claims. The Eleventh Circuit ruled against Villarreal, holding that the ADEA only creates a disparate impact cause of action for existing employees, not job applicants. The Supreme Court’s refusal to grant certiorari means that the Eleventh Circuit’s decision will stand and, for now, the issue will remain open to interpretation by lower courts and the other Circuits.

In 2007, Richard Villarreal applied for a position as a territory manager at R.J. Reynolds, a large tobacco manufacturer and distributor. R.J. Reynolds rejected Villarreal, who was 49 years old at the time, based on a set of standardized internal guidelines. These guidelines stated that the ideal candidate for the territory manager position would be “2–3 years out of college” and instructed reviewers to “stay away from” applicants whose résumés stated that they had been “in sales for 8–10 years.”

In April 2010, attorneys who had learned of R.J. Reynolds’s hiring guidelines contacted Villarreal, informing him that the company’s refusal to hire him might constitute age discrimination. Villarreal filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) shortly afterward. Over the next two years, Villarreal applied for employment at R.J. Reynolds five more times, always without success.

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Published on: January 12, 2017

UBS Securities, LLC Faces Age Discrimination Class Action

By The Harman Firm

By Shelby Krzastek

Former UBS Securities, LLC (UBS) employees Shannon Zoller and Alexander Beigelman claim that UBS forced laid-off employees to release claims against UBS to receive deferred compensation to which they were already entitled under their employment contract. The policy allegedly breaches UBS’s employee contract and violates New York and Illinois state labor laws, the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act. On December 12, 2016, Zoller and Beigelman filed a putative class action against UBS in the U.S. District Court of Illinois.

The suit alleges that, in February 2013, numerous subsidiaries of UBS implemented a policy requiring any employee laid off during staff reductions to sign a waiver and release of claims in order to receive previously earned deferred compensation. According to Zoller and Beigelman, UBS hid the policy in an appendix to a document accompanying the employee contract.

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Published on: November 24, 2015

AREVA Inc. Faces a Lawsuit Over Alleged Age Discrimination After a Reduction In Force

By The Harman Firm

Yarelyn Mena and Edgar M. Rivera, Esq.

On October 15, 2013, after twenty-five years of employment Dr. Farrokh Seifaee was one of fifteen employees terminated from AREVA, Inc. (AREVA) as a part of a reduction in force (“RIF”). The group of fifteen all had one thing in common: every member was over the age of fifty-five years old. On May 12, 2014, Seifaee filed a complaint alleging age discrimination in violation of the Massachusetts Anti-Discrimination Law and the Age Discrimination in Employment Act (ADEA).

In 2011, AREVA lost funding on major projects, resulting in several layoffs in an initial RIF. For the next several years, Seifaee’s team and various others had little work to do as projects began to diminish. In September 2013, AREVA’s management began preparing for another RIF. Department heads, including Seifaee’s supervisor Bret Boman, created criterion to determine which employees would be laid off. The criterion considered business needs, current and past evaluations of each employee, and the employee’s critical or unique skills. Each employee was rated on a scale from one to ten, along with written documentation supporting the evaluation.

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Published on: April 29, 2015

EEOC Brings Another Lawsuit Against Ruby Tuesday Alleging Age Discrimination

By The Harman Firm

Yarelyn Mena and Edgar M. Rivera, Esq.

In February 2015, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in the South District of Florida against Ruby Tuesday, a national restaurant chain, alleging age discrimination. The EEOC alleges that Ruby Tuesday discriminated against older applicants for both “front of the house” positions, which include host and server positions, and “back of the house” positions, which include chef and kitchen manager positions. The complaint claims that Ruby Tuesday’s management told older applicants that they were “too experienced,” that Ruby Tuesday was searching for “fresh” youthful employees, and that “[Ruby Tuesday] wasn’t looking for “old white guys.”

This lawsuit is not the first time Ruby Tuesday has been accused of age discrimination. In 2013, Ruby Tuesday agreed to pay $575,000 to settle another age discrimination lawsuit filed by the EEOC in Western District of Pennsylvania, which alleged that Ruby Tuesday directly or implicitly instructed the managers at six restaurants in Pennsylvania and Ohio to not hire servers, bartenders, hostesses or kitchen staff over the age of 40.

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