Does a Mandatory Retirement Age Equal Discrimination?
The Situation: An employer has a policy that states that all employees must retire at the age of 65. Is this age discrimination?…READ MORE
Is a Claim that an Applicant is Overqualified a Defense to an ADEA Claim?
The Situation: You are trying to fill an unskilled laborer position. One applicant for the position is a former employee with decades of experience in a position that involves more skill and higher pay. You end up deciding to hire another younger applicant, concluding that the former employee is overqualified and will not be satisfied in the position. Can the older applicant bring a claim of age discrimination?…READ MORE
Twelve Million Dollars to be Paid out by Restaurant Chain for Age Discrimination
The Situation: The EEOC took aim at Texas Roadhouse in 2011, claiming that the restaurant chain engaged in a pattern or practice of age discrimination by refusing to hire applicants over the age of 40. According to a press release issued by the EEOC, Texas Roadhouse has now agreed to pay a total of $12 million to an as-yet unidentified group of prospective employees, along with agreeing to take a number of corrective actions to ensure no further discrimination.…READ MORE
Can Automated Response to Online Employment Application Show Knowledge of Age?
The Situation: You have an online application process. When a candidate submits his job application online, he automatically receives an email telling him that his application has been submitted, that you will review his background to determine if his qualifications meet with posting requirements, and that you will contact him if it does. You don’t hire a particular applicant and he claims that it was because of his age-pointing to the automated email as evidence that you had knowledge of his age (which would have been obvious based upon the information in his resume). Is this enough to assert a claim under the ADEA?…READ MORE
Even Age Difference of Eight Years Can Support ADEA Claim if Other Factors Present
As all employers are aware, employment decisions such as hiring, firing and promoting should not be made on the basis of an individual’s age. And one of the key components of a claim based on the denial of a promotion is that the individual who was promoted was substantially younger. So does this mean that if candidates are close enough in age, employers are safe from an age discrimination claim? Perhaps not. Last month, the Ninth Circuit found that even a difference of eight years could be enough to support an ADEA claim where there was other evidence of age discrimination. France v. Johnson, No. 13-15534 (7th Cir. 2015).…READ MORE
What if an employer fails to abide by its own disciplinary process—what’s the harm?
According to a decision from the First Circuit Court of Appeals earlier this year, an employer’s failure to take action in accordance with its own disciplinary process could support a finding of discrimination. Soto-Feliciano v. Villa Cofresi Hotels, Inc., No. 13-2296 (February 20, 2015). Specifically, this failure can support a finding that an employer’s alleged reasons for firing an employee were merely pretext.…READ MORE
Watch Out for Age-based Commentary
Is calling an employee “old man” discriminatory? It could be--just yesterday, the EEOC announced that Wal-Mart has agreed to pay $150,000 and provide other relief to a resolve an age and disability lawsuit filed by the EEOC on behalf of an employee. The EEOC charged that Wal-Mart discriminated against the employee by subjecting him to harassment, discriminatory treatment, and discharge because of his age and refused to provide a reasonable accommodation for his disability.…READ MORE
A Reminder That Employees May Have to Pay for Bringing Unsuccessful Discrimination Claims
We all know that Rule 54 of the Federal Rules of Civil Procedure provides that a prevailing party is entitled to costs (not including attorneys’ fees) unless a federal statute, the rules themselves, or a court order provides otherwise. The district court has the discretion to deny the award of costs, but must articulate some good reason for such a denial. Often, in employment discrimination cases, employees claim they shouldn’t be required to pay attorneys’ fees on the grounds of financial inability. In Arthur v. Pet Dairy and Land-O-Sun Dairies, LLC, No. 6:11-cv-00042 (W.D.Va. 2013), a judge in the Western District of Virginia rejects exactly this kind of argument from an unsuccessful plaintiff, finding that the plaintiff’s claims that he was unable to pay were too “tenuous” to justify denying the defendant’s request for costs.…READ MORE
It Isn’t All About the Ultimate Decisionmaker—Fourth Circuit Vacates Summary Judgment in Favor of Employer in ADEA Case
As employers, we often focus on what knowledge was in the hands of the ultimate decisionmaker at the time a crucial employment decision is made. However, as the Fourth Circuit reminds us in its decision in Harris v. Powhatan County School Board, No. 12-2091, the knowledge and intent of those who have the power and ability to influence those decisionmakers also must be considered and can support a claim for discrimination. Alexander Harris was a seventy-two-year-old African American custodial worker whose position as a custodial worker for the Powhatan County School System was eliminated in 2009 after fifty-two years of employment.…READ MORE