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Age Discrimination A Growing Threat: What You Need To Know.

By Samuel Cordes

Choosing not to hire or to terminate employment based on advanced age is not just rude, it is illegal. This type of act likely qualifies as age discrimination and is often illegal under both state and federal laws. Unfortunately, many reports are finding that age discrimination is a common occurrence throughout the country.

A recent report by the Bureau of Labor Statistics supports these findings. According to the report, long-term unemployment increases with age. The most recent data from 2014 found that 22.1 percent of those under the age of 25 who were unemployed had attempted to find employment for 27 weeks or longer compared with 44.6 percent of those at or above the age of 55. Interestingly, the rates are similar regardless of education level. For example, those who attained less than a high school diploma had an unemployment level of 38.3 percent while those who had a bachelor’s degree or higher were at 37.7 percent. This comparison provides additional support to the hardship those who are over the age of 55 can face in the work environment. If the unemployment trend is tied to a failure to hire based on one’s advanced age, discrimination may be present.

Protections are available

Federally, the Age Discrimination in Employment Act, or ADEA, provides protections against discrimination for those ages 40 or over. Discriminatory practices can occur in the hiring, firing, promoting, training or offering of fringe benefits as well as any other term or condition of employment. It is also illegal to harass an employee based on his or her age. This includes offensive remarks about age that are frequent and severe enough to create a hostile working environment. This law applies to all employers with 20 or more workers including state and local governments, employment agencies and labor organizations.

In Pennsylvania, state law also provides protection for everyone at or over the age of 40 but extends to cover businesses that employ four or more workers. However, it does not cover law enforcement agencies, federal agencies and certain other entities.

Remedies are available

Age discrimination is a problem throughout the country, including here in Pennsylvania. The Bureau of Labor Statistics report noted above also found rates vary by state, with Pennsylvania having a rate of 31.9 percent. Those who believe they are the victim of these practices may qualify for legal remedies including back wages and reinstatement of a position. Contact an experienced age discrimination or wrongful termination attorney to discuss your options.

“The court’s decision to exclude evidence of harassment of other African Americans, not witnessed by West, was also in error. In some instances, evidence of harassment of others will support a finding of discriminatory intent with regard to a later incident.” West, 45 F.3d at 757.

Likewise, evidence of discriminatory conduct directed at other employees – although not witnessed by the plaintiff – is relevant, substantively, to show the employee herself was similarly discriminated against, and to bolster the credibility of the plaintiff.

“Evidence of harassment of others serves to demonstrate that [the plaintiff] did not weave his allegations out of a whole cloth, and bolster the confidence of the finder of fact in the plaintiff’s veracity and in the objective reasonableness of his claims.” West, 45 F.3d at 757, 1264, 1275 (7th Cir. 1991).

Finally, in Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996), a decision whose frankness already is raising the eyebrows of the employer’s bar, the court erased what should be any doubt about the broadness of the brush with which a discrimination plaintiff may paint. Anti-discrimination laws and lawsuits, the court noted, have “educated would-be violators.” However, “discrimination continues to pollute the social and economic mainstream of American life, but is often now masked in subtle forms.”

The court continues by saying: “it has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior. In other words, discriminatory conduct persists, employers have learned not to leave the proverbial smoking gun behind.”

“The sophisticated would-be violator has made our job a little more difficult. Courts today must be increasingly vigilant in their efforts to ensure that prohibited discrimination is not approved under the auspices of legitimate conduct, and a plaintiff’s ability to prove discrimination indirectly, circumstantially, must not be crippled because of crabbed notions of relevance or excessive mistrust of juries.” Aman, 85 F.3d at 1082.

The Aman court then outlined just how broad.

For example, evidence of a hostile environment is relevant to show the plaintiff was fired in retaliation for filing a charge of discrimination or opposing conduct made illegal under the anti-discrimination laws

Evidence of discrimination against other employees is relevant to whether one of the reasons asserted by the employer for its actions was in fact a pretext for discrimination. Evidence of prior acts of discrimination is relevant to an employer’s motive even where this evidence is not extensive enough to establish discriminatory animus. Aman, 85 F.3d at 1086.

A plaintiff can prove the defendant’s state of mind through circumstantial evidence such as evidence of past conduct or prior incidents, United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n.3, 715, 103 S.Ct. 1478, 1481 n.3, 1482 (1983), or evidence of subsequent statements or conduct. Abrams v. Lightolier, Inc., 50 R/3d. 1204, 1214 (3d Cir. 1995); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d cir. 1989) (finding age-based comments relevant even when made subsequent to plaintiff’s termination).

Showing Corporate Culture

Just as past employment decisions can be used as circumstantial evidence of an employer’s intent, so can the atmosphere, or the “culture” where those decisions are and were made, inform the factfinder’s determination.

The Glass-West-Aman “totality of the circumstances” line of cases also has spawned a series of decisions in which 3rd Circuit has recognized the probative value of the culture where employment decisions are made in determining whether an individual employment decision is discriminatory. Therefore, while statements made by non-decision makers, which are temporally remote from the decision, are not direct evidence of improper motivation, when coupled with other evidence, they may be used to build a circumstantial case of discrimination. Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995); Ezold v. Wolf Black Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir. 1993); Roebuck v. Drexel University, 852 F.2d 715, 733 (3d Cir. 1988) (although temporally remote statements, standing alone, would not suffice to establish liability, they support finding of discrimination when combined with other evidence.).

See also Lockhart v. Westinghouse Credit Corp., 879 F.2 43, 54 (3d Cir. 1989); Jasey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993) (court may consider as circumstantial evidence, the atmosphere in which company makes its employment decisions); See also Waldron v. SL Industries Inc., 56 F.3d, 491, 502 (3d Cir. 1995) (comment made five months before termination that employee should lose weight because it would make him look younger was relevant circumstantial evidence of age discrimination); EEOC v. Manville Sales Corp. 27 F.3d 1089, 1093 (5th Cir. 1994) (age related statements made over four-year period relevant for jury consideration); Cooley v. Carmike Cinemas, Inc. 25 F.3d 1325, 1331 (6th Cir. 1994) (Statement made by company’s president more than 20 years ago when president was 18 years old that the elderly should be put away in concentration camps admissible to show state of mind, a highly probative fact, in a discrimination analysis).

In Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995), the court recognized that evidence of the corporate culture in which the employer’s agents make employment decisions is circumstantial evidence in a discrimination case.

In Brewer, the court held that a statement in a company newsletter by Quaker State’s chairman of the board that two new executives were “two of our star young men in their mid-40’s. That age group is our future,” while unconnected to the decision to fire Brewer, and made two years prior to the decision, was nonetheless probative evidence of the corporate culture in which a company makes its employment decisions, and may be used to build a circumstantial case of discrimination. Id., 72 F.3d at 333; see also Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 1996).

In addition, The 3rd Circuit has suggested a number of ways to circumstantially show that culture. For example, Brewer examined published statements by corporate management that showed favoritism of younger executives.

In Jasey, the court of appeals pointed to anonymous racially derogatory notes the plaintiff received, as evidence of the atmosphere in which the company made its employment decisions. Lockhart looked to discriminatory statements made by managers more than six months following the plaintiff’s discharge.

Antol recognized that discriminatory statements by managers who were within the chain of decision-makers who had the authority to hire and fire the plaintiff can be used to show culture. In Abrams, the court held that managers’ opinion of the company policy regarding older workers were admissible to show the atmosphere where decisions were made. In Roebuck, the court upheld admissibility of discriminatory comments by the decision maker made five years before the adverse employment decision.

In its recent decisions, the court has reiterated its view that a discrimination analysis is broad and the atmosphere surrounding the decision-making process is a relevant piece of evidence. See Bray v. Marriott Hotels, 1997 U.S. App. LEXIS 6684 at 13 (3d Cir. April 11, 1997) (stressing that it is totality of evidence that must guide analysis rather than strength of each individual piece of evidence, court rejected analysis that views evidence in isolation); Woodson v. Scott Paper Co. 1997 U.S. App. LEXIS 6290 at 30 (3d. Cir. April 3, 1997) (Although no evidence that arguably affected the decision to fire Woodson the document may still be probative of the environment in which the employment decision was made); Keller v. ORIN Credit Alliance Inc. 105 F.3d 1508 (3d Cir. 1997)(same.)

See also Sheridan v. E.I. DuPont de Newmaurs and Co., 100 F.3d 1061, 1086 (3d Cir. 1996) (en banc) (Alito J. concurring in part and dissenting in part) (recognizing that “stray remarks in the workplace should always be taken into account in determining whether a defense motion for summary judgment or judgment as a matter of law should be granted).

Although the courts will continue to explore the scope and extent of these broad relevance standards in different factual scenarios, the 3rd Circuit has made it clear that the days of “crabbed notions of relevancy and excessive mistrust of juries’ in employment discrimination litigation are at an end.

(Copies of several of the opinions cited above are available from The Legal Intelligencer.)