age discrimination

Four Age-Discrimination Examples That Underline Continued Practice

what_it_takes_to_win_an_age_discrimination_dv2173013_0Age discrimination continues rampant, with new examples surfacing daily across the corporate world, academia and government. Some recent ones clearly underline the seriousness of the overt prejudice against older workers.

The International Business Times, for example, recently noted that, although the U.S.’s youth unemployment rate remains extremely high at 19.2 percent, it is older Americans who are facing a more perilous future of what to do in the last decade or two before retirement age. “Older job seekers not only face persistent age-based discrimination,” the story asserts, “they’re also hit with a second bias against the unemployed who have been out of work for too long.”

“We all know there’s discrimination,” says Peter Sgambati, one of the persons profiled in the article. Out of work for more than a year, he says: “It’s obvious to anyone my age applying for so many jobs they’re qualified for.” To deal with this problem, Sgambati says he reworked his résumé to hide details the clearly divulged his age. His actions included removing the dates he acquired his diplomas, truncating his work history to remove earlier work experience and removing the start and end months from each period of past employment in order to reduce noticeable gaps between jobs.

Meanwhile, Information Week, in an interesting piece, comments that age discrimination in the information technology industry “is at worst rampant and at best misunderstood.” The publication says it reached that conclusion based on the extensive reporting it has conducted on the subject, as well as “the flood” of reader feedback it has received on its coverage.

Indeed, Information Week has published a number of articles vividly detailing the abuses and notes that, while most ageism is subtle, often lurking in disguise as a “culture fit” issue, it’s often right out there in the open.

“Older IT pros on the job hunt might find their age is an unwelcome factor in employment decisions, even when market conditions are favorable,” one earlier story noted. “There’s little hard data on age bias in the IT field, but professionals and recruiters say it’s an industry reality.”

The publication’s conclusion: “It’s also stupid.”

The Motley Fool investment site also is monitoring the topic, contributing a recent  article that points out that several tech companies, including Google, have been sued in the past over allegations of age discrimination. The interesting part of the Motley Fool piece, however, is its referencing the widely read New Republic article that asserts that “perceived ageism has also notably caused the number of plastic surgery procedures among male tech workers to climb in recent years.” The must-read piece begins with surgeon Dr. Seth Matarasso’s classic quote: “I have more botox in me than any ten people.”

More specific to Google, the Motley Fool piece cites the 2010 case of Brian Reed, who sued Google for age discrimination, claiming that co-workers mocked his tech knowledge as ancient and called him an “old fuddy-duddy” and other age-related insults. Reid, a former associate professor of electrical engineering at Stanford, was laid off in 2004 at the age of 52. The case was eventually settled out of court for undisclosed terms.

Finally, the Poughkeepsie Journal, along with several other publications, reported about a former employee of IBM who stated in a federal lawsuit that the company’s hiring of young college graduates while firing older workers violates federal and state laws barring age discrimination. One of the charges in the suit alleges that IBM had a campaign of job advertisements in late 2013 calling for applicants with graduations in 2010 or later.

Pretty blatant stuff.  Just like the other cases.

 

 

Staples on Wrong End of $26 Million Age-Discrimination Award

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Kudos to a Los Angeles Superior Court jury, which has said – in no uncertain terms – that age discrimination won’t be tolerated.

In a significant decision, the jury awarded a 66-year-old man – Bob Nickel – a $26 million wrongful-termination and age-discrimination verdict.  (The award consisted of $3.2 million in compensatory damages and more than $22.8 million in punitive damages.)  The losing defendants: Staples Contract and Commercial, Inc. and Staples, Inc. 

The award is described as the largest of its kind in Los Angeles legal history.  While the award stands out in terms of size, the case, unfortunately, sounds all too familiar.

The details …

Nickel was a 64-year-old man at the time of his termination in July 2011.  He had been employed as a facilities manager by the organization since August 2002, when he joined Corporate Express, which was acquired by Staples Contract and Staples in 2008. And he did his job.  Well, it seems.  For nine years or so, Nickel received positive reviews for performing his work in an exemplary manner.

However, through no fault of his own, Corporate Express’ pay scale had been higher than the pay scale for employees hired by Staples.  So, like many others in similar situations, he had a bull’s-eye painted on his back.  And Nickel, like those others going through the same thing, could feel it growing larger and larger.  And he said so in his lawsuit, alleging that his managers noted that they needed to “get rid of” older, higher-paid employees.

(At the same time, his employer apparently was so focused on getting rid of him that it couldn’t govern what was said about Nickel.  In his complaint, Nickel says he became the regular butt of jokes at staff meetings and was referred to as “old coot” and “old goat.”)

At the trial, the jury heard that Nickel refused to resign voluntarily when prompted to by a manager.  And that he underwent a series of false accusations and increasing levels of harassment from co-workers and a manager.  This included being written up and suspended for “stealing,” after taking a bell pepper valued at 68 cents from the company cafeteria.

Regarding the bell pepper: Defense attorneys said taking the bell pepper violated the company’s zero-tolerance policy when it came to “dishonesty of any kind, including theft or misappropriation of company property.”

Got that?

The jury also heard that a receptionist had approached Nickel explaining she had been ordered by management to provide a false statement about Nickel’s conduct.  To her credit, she refused.

Bob “has a long history of being a hard working, ethical professional who had held his position of employment for almost a decade prior to his wrongful termination,” says attorney Carney Shegerian.  “This verdict and the justice served will hopefully put employers on notice that they cannot discriminate against employees based on age.”

That’s a lofty and admirable objective.  Hopefully, the Human Resources departments of employers all across the country are paying attention.

 

Age, Gender Discrimination Allegations at Yale SOM

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Legal filings supporting discrimination cases usually make for extremely good reading.  The anecdotes, emails and Human Resources documents often describe practices we know exist, but which usually aren’t discussed publicly – except when they are included in legal matters.

The case of Constance E. Bagley, a 61-year-old Yale University School of Management professor, takes good reading to a new level.

Professor Bagley, who holds a J.D., magna cum laude, from Harvard Law School and a Bachelor of Arts in Political Science, with distinction and honors, from Stanford University, is the only woman ever appointed to the rank of Professor in the Practice at Yale School of Management.  She also is the woman who has brought a lawsuit in U.S. District Court in Hartford against Yale and three individuals for age and gender discrimination, as well as retaliation.

Her story may seem extreme.  But it really is far too common.

First, some background.

Prior to moving to Yale, Professor Bagley was a partner in the law firm of Bingham McCutcheon in Massachusetts.  In 2007, at the invitation of then-Yale SOM Dean Joel Podolny, Professor Bagley secured an initial five-year appointment, scheduled to end on June 30, 2013, as a “Professor in the Practice.”  In her court filing, she asserts that the appointment included a promise of a multi-year renewal, as long as her performance met expectations. 

With that appointment, and understanding, she and her young son moved from Massachusetts to Connecticut, seeking – as she states it – “stability and a promotion to full professor and anticipating finalizing her professional career at Yale.”  And why not?  She says that one tenured SOM professor told her that, “to not get reappointed as a Professor in the Practice, you have to have really f-cked up and you haven’t. To the contrary, you have done well.”

Indeed, it appears she did very well.  She co-developed “State and Society,” a major core course for which she received excellent course reviews, and won the Excellence in Teaching Award. She also authored several publications appearing in nationally recognized journals and magazines, in addition to co-authoring a new edition of a book on entrepreneurship that has been described by Business Insider as “perhaps the most useful business book you can ever read.”

Professor Bagley also was the primary architect of Yale University’s new policies on sexual misconduct, she served as a core member of the University-Wide Committee for Sexual Misconduct and she continued to publicly advocate for equal treatment of women at Yale and for an end to sexual misconduct, including the creation of a hostile environment.  

Despite these achievements, the School of Management’s leadership (in decisions “tainted by sexual bias and retaliation,” she asserts) refused to renew her appointment. “Professor Bagley became the object of gender stereotyping,” her filing states.  “She didn’t fit the Yale vision of the young male SOM professor, or the more passive subordinate female professor who would bend to their will. Professor Bagley had the temerity to challenge gender biased decision-making and challenge the dominant, older male leadership.”

Her filing continues: “The conclusion by the Yale SOM leadership that she should be forced out of Yale then went searching for a reason.”  The lawsuit states that one professor told lies about her performance and capabilities out of discriminatory animus and that two superiors “further aided and abetted the discrimination by shifting standards for her review and ever changing the reasons for her non-renewal.”

And, so, Professor Bagley was replaced by two younger, less-experienced males.

But Professor Bagley decided to fight back.  She challenged the nonrenewal decision and raised concerns of bias. She filed an internal grievance with the University and a committee found that, not only had she relied to her detriment on the promises made at the time of hiring, but she had been subjected to “a chilly environment for women” and “inappropriate comments and behaviors based on gender.”

But she says the committee finding didn’t help. “Having had the temerity to complain about gender stereotyping and discrimination, (my) situation at Yale only became worse. Retaliation ensued.”  According to the lawsuit, for more than a year-and-a-half, Professor Bagley was forced to endure multiple and unusually lengthy and delayed pre-textual “review” processes.

As a result, despite the unanimous findings of two Yale SOM faculty review committees that Professor Bagley’s teaching, scholarship and service clearly warranted renewal, and in the face of a blatant lack of due process, her contract was not renewed. She must depart the University by December 31, 2014, with her reputation damaged and, she claims, “making relocation to another academic institution virtually impossible.”

Extreme?  Yes.  Happen every day?  Yes.

 

 

 

 

 

Age-Discrimination: “Willful Violation” Found in CVS Caremark Case

PastedGraphic-1Interesting age-discrimination case against the CVS Caremark pharmacy chain came to an end recently in Alabama and, like the rash of other cases preceding it, demonstrated the cavalier and callous manner in which older Americans regularly are cast aside by their employers.

In this particular case, a two-week trial before U.S. District Court Judge Virginia Hopkins in Anniston, Ala., the jury found that a CVS pharmacy in that town willfully violated the Age Discrimination Employment Act when it fired pharmacist Roger Harris in August 2009 – at the time of his 65th birthday.

Harris had filed the suit against Rhode Island-based CVS Caremark in February 2011, alleging that his supervisor and co-workers created a workplace filled with derogatory remarks regarding his age.  In the suit, Harris said that his supervisor and district manager failed to correct the behavior, and that he later received numerous inaccurate and unfounded reprimands regarding his job performance.

The pharmacist began his effort to fight back when he filed a charge against his employer with the Equal Employment Opportunity Commission on Dec. 1, 2009. However, the case was dismissed in Nov. 23, 2010. He then filed his suit, which an individual is entitled to do 90 days after receiving notice that the EEOC has dismissed his charge.

In the Alabama case, Harris was awarded $400,000 in back pay. Given that the jury concluded CVS’ conduct was willful, the law provides damages in the same amount — $400,000 – as the back pay. The judge, however, has not yet ruled on that element of the jury’s decision.

The timing of Harris’ termination from CVS was particularly interesting, as the termination document was dated August 13, 2009, when the pharmacist was off celebrating his 65th birthday at the beach. When he got back to work, and returned to work on August 17, 2009, he was terminated – and replaced by a 27-year-old who was paid far less than Harris.

Not surprisingly, the company disagreed with the jury decision and is considering an appeal.  “CVS Caremark has a firm non-discrimination policy, and we do not tolerate discrimination in our workplace on the basis of age or any other legally-protected trait,” a spokesperson said.

Harris didn’t “tolerate discrimination” either.  And he, like a growing number of Americans, said “no, you can’t do that to me.”

And the number will continue to grow as long as practices such as these continue.

 

Ageism Part 2: Rejection Letters

So, as it turns out, my acquaintance Lenny reads this blog.  And, because he is in his early 60s and not working, he had plenty of time – and sufficient interest – to read my recent posting [“Ageism: Rampant and Spreading”] regarding the spread of age discrimination.

Lenny – like other people his age – is having a difficult time securing work.  This, despite the fact that he is highly experienced, has extensive expertise and is still very healthy and vibrant.

After reading my blog – and seeing my mention of “robojections,” those automated rejection notices that companies send you when you no longer are a candidate – Lenny contacted me to vent.  And to let me know how annoyed he is at the whole “robojection” process.

The following represents just of few of the “robojections” he has received (and his commentary on each):

Robojection:  We received materials from many experienced applicants as yourself, and it was a difficult decision selecting the candidate whose background most closely related to the requirements of this particular position.

Lenny Comment:  Apparently not that difficult!

Robojection:  Thank you for your interest in the position.  We’ve rehired a former associate of ours to take the position.  Good luck in the future.

Lenny Comment:  Thanks.  Maybe I will be as lucky as your former associate in the future.

Robojection:  We are currently pursuing candidates whose skills, background and/or seniority more closely fit the requirements for this position.

Lenny Comment:  Seniority?  If that were true, I would be coming in for a meeting.

Robojection:  We regret to inform you that the position has been filled. 

Lenny Comment:  You regret?  Why?

Robojection:  Please forgive the form letter, but the enormous volume of inquiries we receive obliges us to respond in this manner. Thank you and best wishes in your future endeavors.

Lenny Comment:  I don’t care about the type of letter.  I care about not getting a chance.  Oh, and I’m not looking for endeavors.  I’m looking for a job.

Robojection:  Your background and qualifications have been given careful review with respect to this position. Although you were not selected for this position, we appreciate your desire to expand your career.

Lenny Comment:  The only thing that was given careful consideration was my age.  Do they really think I’m trying to expand my career at this point?

Robojection: The hiring department has thoroughly reviewed your application for this position and has selected another applicant that best meets the needs for the position.

Lenny Comment:  “Who,” not “that.”  You may not be human but we are.

Robojection:  We wanted to notify you that the role has been filled or closed.

Lenny Comment:  I guess this one is the dual-purpose response.

Robojection:  Again, we sincerely appreciate your interest and pray that God will bless you as you continue to pursue your career goals.

Lenny Comment:  Oh, now I feel better.

As mentioned in my last piece, ageism is rampant and spreading.  And, apparently, works well with high technology.

Ageism: Rampant and Spreading

There is an interesting – and important — piece by Roger Wright on ageism on the Huffington Post. The article, entitled “Ageism in Action,” touches on several key elements of ageism, including the fact that research clearly details that ageism is perceived to be a bigger barrier to employment than sexism or racism.

The author also touches on elements of ageism, such as the automated rejections (“robojections”) that seniors receive when applying for openings for which they are perfectly – and more than – qualified.

Importantly, the piece also notes that age discrimination is being carried out “amid a societal tidal wave of indifference that lets ageism happen with barely a peep.”

There is a second, equally important, aspect to ageism that also exists.  And that’s the practice of marginalization, in which older, and still highly qualified, employees are frozen out of important strategic and operating elements of a company – thus, making them outsiders looking in.  The goal of this behavior on the part of management is clear: to adversely impact the job performance of the older worker, all with the aim of then being able to give the older employee a subsequent “negative” performance review that will allow the company to effectively push the employee out the door – and strip away the employee’s ability to seek legal recourse.

This practice has been implemented across industries and sectors for years.  And, for the most part, those employees not in management’s bulls-eye have either been complicit and/or remained silent.

And the practice continues to grow.