Age discrimination inquiries increasing

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 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.”

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.”•