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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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