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Age discrimination inquiries increasing

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Downsizing, reductions in force, restructuring – whatever companies call it, most employees recognize these terms as a sign that their jobs are in jeopardy. With longtime employees generally earning much more than their less-seasoned peers, sometimes management chooses to trim expenses by eliminating jobs at the top – and in doing so, they risk being accused of age discrimination.

Attorneys who represent employers and employees say they’ve been fielding more inquiries lately about age discrimination. People are simply working longer – either out of necessity or because they enjoy their jobs. With the “graying” of the workforce, questions about age discrimination are likely to increase.

What the questions are

Gregory Kult, a partner at Wooden & McLaughlin who advises and represents employers in labor law matters, said that while he has not noticed a significant increase in claims of age discrimination, he has received an increasing number of inquiries about that topic from businesses looking to reduce staff.

“This awareness is a positive development, as I have seen an increased consideration of voluntary early retirement programs, and of severance packages for those who are involuntarily terminated, by employers who have no legal obligation to offer such benefits,” Kult said.

kult Kult

Kult typically deals with non-governmental employers covered by the Age Discrimination in Employment Act, which applies to businesses with at least 20 employees. In Indiana, businesses with less than 20 employees are covered by the Indiana Age Discrimination Act. And under either law, proving a claim of age discrimination is difficult.

Kim Jeselskis, owner of Jeselskis Law Offices in Indianapolis, represents individuals in employment law matters. She’s been getting an increasing number of questions about age discrimination, and those have been primarily from one profession – sales.

“I think many companies want a young face in the sales force,” she said, noting she’s received calls from women in their 50s and 60s who do sales. “I think people are working longer, so they’re in the workforce longer. When it comes to sales – this is just my opinion – I think employers like the young 30-year-old doing the sales, out there beating the bushes, as opposed to the 60-year-old female.”

Challenges in getting to trial

A terminated employee attempting to prove a case of age discrimination must first file a complaint with the Equal Employment Opportunity Commission. And unlike other discrimination claims – which allow 300 days to file a complaint – age complaints must be filed within 180 days.

“If your charge is dismissed by the EEOC – which almost all of them are – that gives you 90 days to file your complaint in federal court,” Jeselskis said. She has received calls about age discrimination where the caller had simply waited too long to take action.

Cynthia Rockwell, an attorney with Fort Wayne’s Rockwell & Jansen, said that her experience representing employees in age discrimination cases has revealed that most claims never make it to court. That’s why, in general, people are not seeing an overall increase in these cases.

“I think you’re not seeing them because of summary judgment. I don’t know that for a fact, but in my caseload … we’re having trouble actually getting to trial in age discrimination cases,” she said. “Most cases – once you get past summary judgment – you can get a decent settlement.”

kult Jeselskis

The challenge with getting past summary judgment is that once the employer files a response explaining the reason for an employee’s termination, the plaintiff must then prove that the employer’s explanation is a lie. If the plaintiff’s attorney can’t show that during discovery, a judge is inclined to grant summary judgment for the employer.

“Discrimination cases, in general, are more difficult than other kinds of cases, because the majority of people don’t say things like, ‘You’re too old to be here,’ or ‘I don’t like you because you’re black,’ or ‘Because you’re a woman, you should be at home and not in the workplace,’” Jeselskis said. “Every once in a while, you can’t believe what somebody said, but in the majority of cases, you don’t have statements like that, so you have to look at circumstantial evidence.”

Settling a case

Kult explained that an employee cannot establish age discrimination merely by showing that age was a motivating factor in his or her termination. The employee must prove that he or she would not have been terminated “but for” his or her age.

Because businesses consider so many factors when reducing the number of workers, he said employees will experience challenges in meeting that “but for” test.

In cases where a judge grants a motion for summary judgment in favor of the defendant, the plaintiff’s attorney could ask the 7th Circuit Court of Appeals to weigh in, but Jeselskis said that often the 7th Circuit affirms the lower court. Because age discrimination cases can be so costly and time-consuming to litigate, they’re often settled out of court, she said.

In Susan Guyett v. Indiana Newspapers, Inc., No. 1:10-CV-0519, Susan Guyett claimed that she was terminated because of her age and replaced with a younger staffer. A judge found that the plaintiff was able to cast doubt on her employer’s reason for terminating her, and the case had been scheduled for trial in April. But the parties settled out of court in early March.

Societal views on aging

At IL deadline, Rockwell was preparing for an April trial in an age discrimination suit against a major healthcare provider. The case involves a supervisor new to the company who “came in and started getting rid of everyone over age 50,” she said. But she is aware that supervisors – no matter what their motives are – can create a paper trail that can be convincing in court.

“It’s very easy to document a file,” she said. “So you’ve got documents that say one thing and a person that says no, that’s not what happened.”

Rockwell said she thinks that society in general is dismissive of its aging population. People may assume that older workers are less relevant, or less engaged, even though she’s talked to people in their 70s who want to continue working.

“Just look at the law firms out there,” she said. “You’re seeing the older partners are still engaged.”•

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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