Articles Posted in Age Discrimination

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By Edgar M. Rivera, Esq.

On March 12, 2019, in Cyr v. Hannaford Bros. Co. LLC, the District Court of Maine denied summary judgment on an age-discrimination claim, reasoning that a jury could find that the proffered reason for Plaintiff Robert Cyr’s discharge was pretextual, given inconsistencies in the evidence regarding the Defendant Hannaford Bros. Co. LLC’s investigation and the supervisor’s ageist comment.

In 1983, Cyr began his employment with Hannaford, a trucking company, as a dispatch supervisor.  In October 2015, Bruce Southwick became Cyr’s supervisor.  Later that year, Cyr confided in a coworker that he did not agree with the direction of the company and so was considering retiring in 2016.  When Southwick learned of that conversation, he asked Cyr about his retirement plans.  Then age 59, Cyr responded that he did not intend to retire until he was 67.

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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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Lev Craig

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.”

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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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Shelby Krzastek

On October 27, 2016, Blythe Asher, former Senior Vice President of Talent Development and Casting at E! Entertainment Television, Inc. (E!) and NBC Universal (NBC), brought a wrongful termination suit against her former employer, alleging that E! had discriminated against her because of her age and disability. Asher began working at E! in 2009, where she oversaw casting, talent development, and talent management for the E! network, eventually working her way up to Senior Vice President in July 2013. Although Asher was never in front of the camera herself, her position demanded substantial personal interaction with numerous celebrities, directors, producers, and industry executives.

In summer 2014, Asher was diagnosed with breast cancer and underwent surgery, chemotherapy, and radiation treatments. Asher continued to conduct business and oversee her department via telephone and e-mail throughout her cancer treatment, even on the morning of her surgery and from her hospital bed during her recovery.

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Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, and March 4, 2016, The Harman Firm, LLP published the first two parts of its three-part article titled Microaggressions. The third part, which follows below, discusses microaggressions in the context of employment discrimination litigation.

Passed in 1964, Title VII prohibits employers from discriminating against their employees on the basis of gender and race, among other protected characteristics. Under Title VII, prohibited discrimination includes subjecting an employee to a hostile work environment and unlawful employment practices. Unsurprisingly, examples of all three forms of microaggressions (microinsults, microinvalidations, and microassaults) are reported in a variety of judicial opinions brought under Title VII. However, Title VII does not prohibit conduct that is “merely” offensive, meaning that not all microassaults are actionable (and most microinsults and microinvalidations are not either, despite their impacts on their targets). Indeed, the Supreme Court held that “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not sufficiently affect the conditions of employment to implicate Title VII.

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Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, The Harman Firm, LLP published the first part of its three-part article titled Microaggressions. The second part, which follows below, discusses practical examples of microaggressions and their impact on those subjected to them.

Microaggressions are hidden messages that are sent: (i) verbally (“You speak good English” to Latino or Asian coworker, suggesting that Latino and Asian Americans, because of their ethnicity, are foreigners and not ‘real Americans,’ regardless of their birth place); (ii) nonverbally (clutching one’s purse more tightly when a black man passes on the sidewalk, conveying the belief that Black people are prone to crime and are “up to no good”) and; (iii) environmentally (using American Indian mascots during football games, suggesting that American Indians are savages or otherwise outsiders and demeaning their culture and traditions).

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Lucie Rivière and Edgar M. Rivera, Esq.

This blog is the first section of a three-part article discussing microaggressions and their effect in the workplace. This first section covers the development of the term “microaggression” and the different types of microaggressions that exist. The second section covers practical examples of microaggressions and their impact on those subjected to them. The third section covers the application of microaggression to employment discrimination law.

As more brazen forms of workplace discrimination slowly become less common, employees may experience more discrimination through microaggressions. Chester Pierce, M.D. of Harvard University, who developed the concept of microaggressions in the 1970s, describes microaggressions as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color.”

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Yarelyn Mena

Employment discrimination can occur at the application stage; an individual does not need to be a current or former employee to bring a discrimination claim. It is important for everyone in the labor force to know that prospective employees are also protected by antidiscrimination laws.

Prospective employees generally do not attend a job interview on the alert for an interviewer’s discriminatory questions but, according to a survey conducted by the job search website CareerBuilder, twenty percent of hiring managers ask “off-limits” questions during interviews. The following is a list of ten categories that candidates should be weary of if interviewers breach these topics. It is important to note that although many of these questions are not explicitly illegal to ask, they give rise to an inference of discrimination.

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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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