Podcast Episode #7: Your Boss Can Be Liable to You For Creating A Hostile Work Environment Based on Age

In Episode #7, we discuss how your boss can be liable to you for creating a hostile work environment based on age.  The main example we cover is Elizabeth Parks v. Lebhar-Friedman, Inc., 2008 WL 4449345 (SDNY) (Oct. 2, 2008). Parks’ worked for her employer, Drug Store News, for 26 years.  Even after that much time with nothing but good reviews, Parks felt like her boss was trying to make life miserable for her and push her out.  Her boss concocted excuses to “write her up” and criticize her work for vague reasons that no one could understand, much less act upon. Parks’ boss, however, wasn’t planning on Parks pushing back.  To learn how she did it, and how she got some smoking gun evidence against her boss and other executives at her company, just listen to the show.

You can listen on iTunes by clicking HERE.

If you don’t use iTunes, you can listen by using the podcast player:

Also, the resource discussed in the quick tip is at:  http://creditcard.westlaw.com/.

Does Your Boss Harass You Like This?

One of the most frequently recurring patterns of conflict in the workplace is when a New Supervisor joins a department and ruins everything the senior employees liked about their jobs.

Company Executives often assign the New Supervisor the task of “clearing out the dead wood” or “cleaning house.” Excited to have his or her first supervisory job, the New Supervisor charges into the task of “cleaning house” with all the delicate subtlety of a pro wrestler.

Is the New Supervisor just doing their job, or buying into a company policy and practice of age discrimination toward older “dead wood” workers?

True Story: A New Supervisor at Best Buy bought into the task of clearing out 54 year old Jolyn McDonald, big time.

McDonald worked at Best Buy for 17 years before the New Supervisor, Ed Stald, arrived.

1. The first thing he did was tell all the employees they now had a “clean slate”;
2. The second thing Stald did during his initial meeting with the store management team was to brag that he could fire any employee “with documentation.”
3. Third, Stald immediately put McDonald on a “Performance Improvement Plan.” Stald did this before he had even worked with McDonald.

After Stald did begin working in the store full time (for a period he split time between his previous Best Buy store and his newly assigned store where McDonald worked) Stald called McDonald “Grandma.” He did this in front of other employees and other members of the store management staff. He also referred to McDonald as “Grandma Jo” and “Grandma Jolyn”.

For McDonald, Stald was harassing her and turning her world upside down. She had 17 years of experience, had been promoted into the store’s management team as the “Customer Service Manager,” and had a history of strong performance appraisals.

None of that appeared to matter to Stald or the Best Buy brass.

Best Buy had begun a new “customer focused” operating plan that required Customer Service Managers, such as McDonald, to change many aspects of their jobs.  Best Buy claimed that “more tenured” employees had difficulty adjusting to the new system.

McDonald felt that “more tenured” was code for “older.” From her perspective, she had loyally served Best Buy for nearly two decades, but despite that the company decided that older workers couldn’t succeed in the new system.   And Best Buy decided this before even giving older workers a chance to show that they could perform in the new system just like they did in the previous one.

Feeling harassed by her boss, and believing the company was “building a case” to terminate her, McDonald left on vacation for a week to get away and decompress.

When McDonald returned from vacation she was demoted.  Stald told McDonald that while she was on vacation her staff had dealt poorly with some customer service issues.

Rather than accept her demotion, McDonald quit.  Then she filed an age discrimination lawsuit under the Age Discrimination in Employment Act (ADEA) against Best Buy.

Best Buy made a number of arguments in it’s defense. Maybe you have heard some of these arguments yourself?

Best Buy claimed that McDonald’s performance really had gotten worse, despite 17 years of great appraisals.

The court rejected this argument, saying that Best Buy wrote up McDonald for nebulous, unprovable things like “failure to manage labor.”

Best Buy claimed that its statements that the new company operating plan was difficult for “more tenured” employees did not mean “older” employees. Best Buy claimed that “more tenured only meant people who had been with the company many years, and that people under 40 could be with the company many years and also have a hard time with the changes.

The court rejected this argument too. The court said that because Best Buy never came forward with actual examples of employees under 40 years old who had been with the company for many years and who were having a difficult time adjusting to the new system, Best Buy’s argument was suspicious at best, because there was no denying that it was implementing “a business model that results in the demotion or termination of “more tenured” employees is an effective artifice to push older employees out the door.”

Best Buy actually argued that calling McDonald “Grandma” was not an age related comment. Best Buy claimed that since it’s possible for people under 40 to be grandparents, all the times Stald called McDonald “Grandma” or “Grandma Jo” should be disregarded by the court.

The court said that Best Buy’s argument “does not stand the test of logic.” The court continued to rip into Best Buy:Simply because a racial epithet could beused to refer to a person outside of a protected class does not mean that a racialepithet is not race related and is acceptable in the workplace. What matters is the commonly accepted meaning of the word. In this case, a woman who is labeled
Grandma” is unquestionably labeled with the moniker because of her age or personal characteristics popularly associated with persons of an older generation.

Conclusion: Multiple Bad Acts = Mosaic of Age Discrimination

In the end, the court said that no one piece of evidence was enough to get McDonald to a jury trial.  But, “when considered in combination, they present a mosaic that could convince a jury that Plaintiff’s termination was the product of a new corporate culture geared toward putting older employees out to pasture.”

Take Away Tips From The Undercover Lawyer:

1. Courts Care About the Common Everyday Meanings of Words. If your company engages in corporate doublespeak like Best Buy, rest assured that in a court of law this type of talk won’t fly.
2. A Decade of Positive Appraisals DOES MEAN SOMETHING. However much your employer may try to convince you that “that was then and this is now” courts are persuaded by a history of good reviews.
3. Companies Should Not Push New Systems That Push Older Workers Out the Door.
4. Courts Consider All the Facts Of A Hostile Workplace Together as a “Mosaic.” Usually, no single factor will determine the outcome either way. But the law will consider all of the facts together, and look at “the big picture.”

Does your employer stop short of blatantly discriminating against older employees, but does it engage in lots of discrete negative actions that — when taken together — push older employees out?  If so, here is a link to the full text of the case, so you can print it out and have ready to include in a letter to your own boss or company H.R. Dept:

(McDonald v. Best Buy Co., U.S. Dist. Court, CDIL, 8/28/08)

Hostile Workplace Podcast #3: Straight-Male to Straight Male Sex Harassment

Episode #3 of the Hostile Workplace Podcast, by the Undercover Lawyer

To access this podcast through the iTunes music store (for free) click HERE.

Announcements

In Epsisode #3 I mentioned that you can follow me on Twitter. In you are not familiar with it, Twitter is a “micro-blogging” site, where people can post short, text message length updates about what they are doing each day. You can see it for yourself at www.Twitter.com .  My username on Twitter, if you would like to follow me, is “Undercover_Lawr”.

Quick Tip

For the Quick Tip, we talked about how employees have zero expectation of privacy for anything done with their work computer, or their work network (like signing in from home – still utilizes work network).

Feature Segment – Straight Male to Straight Male Sex Harassment

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998)

Facts of the Case

Joseph Oncale, a male, filed a complaint against his employer, Sundowner Offshore Services, Inc., alleging that he was sexually harassed by co-workers, in their workplace, in violation of Title VII of the Civil Rights Act of 1964 (”Title VII”). On appeal from a decision supporting a district court’s ruling against Oncale, the Supreme Court granted certiorari.

Question

Does the prohibition against sex discrimination, set out in Title VII of the Civil Rights Act of 1964, apply to same-sex sexual harassment?

Conclusion

Yes. In a unanimous opinion, the Court held that while Title VII does not prohibit all verbal or physical harassment in the workplace, it does bar all forms of discrimination “because of” sex. Such discrimination, whether motivated by sexual desire or not, is actionable so long at it places its victim in an objectively disadvantageous working condition, regardless of the victim’s gender.

Written Option: http://supreme.justia.com/us/523/75/index.html

Davis v Coastal Intern. Sec., Inc, 275 F3d 1119 (2002)

Facts: The extended and rancorous workplace dispute giving rise to this action began in 1996 after Coastal International Security hired Wallace Davis to work as a security guard at the Environmental Protection Agency. While serving as a supervisor early in his tenure, Davis disciplined two other Coastal security guards, Aaron Smith and Everett Allen, for various on-the-job infractions. Smith and Allen, apparently infuriated by their discipline, launched a retaliatory campaign against Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required the three men to sign a memorandum of understanding in which they agreed to set aside their differences. This agreement accomplished nothing. When Davis was demoted Smith and Allen visited his work station and taunted him about the demotion. Approximately six months into their campaign against Davis, Smith and Allen expanded their repertoire. Smith approached Davis at his work station and grabbed his (Smith’s) crotch, made kissing gestures, and used a phrase describing oral sex. After Smith twice repeated this performance, Davis complained to his supervisor, who convened a meeting with Davis, Smith, and Coastal’s project manager for the EPA facility. Because Smith denied Davis’s accusations, and because Davis failed to provide corroborating evidence, the project manager took no formal action, but admonished both Davis and Smith to “ act like grown men.”

Undeterred, Smith continued his vulgar comments and gestures, and Davis again complained to his supervisor. This time the supervisor warned Smith that he would be fired if his behavior continued. This seems to have gotten Smith’s attention, for his lewd conduct ceased (although Davis alleges that Smith threatened his life on several subsequent occasions). Allen, however, twice approaching Davis and made precisely the same lewd gestures and comments that Smith had.

When Davis complained for a third time, Coastal conducted a full-scale investigation. Although the investigator interviewed ten employees, he concluded that the inquiry had been “hampered by the lack of a reliable witness to substantiate even one allegation of sexual harassment by … Davis.” Notwithstanding this lack of corroborating evidence, the investigator recommended that Davis and Allen be reassigned (Coastal had terminated Smith for unrelated reasons). Shortly thereafter, Davis filed one final complaint, claiming again that Allen, despite his reassignment, had repeated the by-now-familiar lewd gestures and comments.

In January 2000, over three years after these events began, Davis filed suit in the United States District Court for the District of Columbia, alleging that Smith’s and Allen’s behavior amounted to sexual harassment and that Coastal and Securiguard “permitted … Allen … and … Smith to make sexually vulgar gestures and statements.”

Legal Standard for Male to Male Sex Harassment:

The Court suggested three ways to prove that same-sex sexual behavior rises to the level of illegal sexual harassment: The plaintiff may show that the sexual behavior is motivated by actual homosexual desire; that the harassment is framed in “such sex-specific and derogatory terms … as to make it clear that the harasser is motivated by general hostility” toward members of the same gender in the workplace; or that there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale, at 80-81, 118 S.Ct at 1002.

ROBINSON v FORD MOTOR Co 277 Mich App 146 (2007)

This case was brought under STATE LAW, Michigan Civil Rights Act (MCA). “Plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations under Civil Rights Act (CRA) must present some credible evidence that the harasser is motivated by sexual desire; however, the same cannot be said about the third type of action barred under the CRA, namely verbal or physical conduct “of a sexual nature.” M.C.L.A. § 37.2103(i).”

Robinson presented enough evidence to allow the case to go to a jury that his co-worker’s conduct and communication inherently pertained to sex for purposes of employee’s same-gender sexual harassment claim under Michigan’s Civil Rights Act (CRA); Robinson’s co-worker allegedly exposed his testicles and forced Robinson to touch them, hit Robinson’s buttocks, exposed Robinson’s underwear, and it just gets worse from there…

FEMALE HARASSING MALE

Jones v U.S. Gypsum, 126 F Supp 2d 1172 (2000)

Legal Standard that Accuser Must Satisfy:

(a) she is a member in a protected group; (b) she was subject to unwelcome sexual harassment; (c) the harassment was based on sex; (d) the harassment affected a term, condition, or privilege of employment; and (e) the employer knew or should have known of the harassment and failed to take proper remedial action.

This case is a fun one in part because of the gender flip, the woman is harassing the man, and in part because the things the woman did would be outrageous no matter who did them.  The clear legal standard spelled out by the court, points (a) to (e) above, make the case worth noting apart from the outrageous facts.

Age Discrimination or Disciplinary Policy Exception: Why Does the Text Message Generation Get More Chances?

Does your company state that it will not discriminate on the basis of age, race, religion, color, nationality, disability or gender?  Does your company also have a written progressive disciplinary policy? Do your supervisors always follow each step of the progressive discipline policy?  A new court ruling says that if they don’t, you could successfully sue and win significant money damages pursuant to the Age Discrimination in Employment Act (ADEA).

The Real Case of Cynthia and Leann: Cynthia Kildoo and Leann Richter worked as retail sales associates (RSA’s) at a Cellular One store. Both were over 40. The company set specific sales quotas for its RSAs.  For those who failed to meet their quotas, like Cynthia and Leann, Cellular One instructed its store managers to follow its written “progressive discipline” procedure that was spelled out in the company’s policies.  To make sure that store managers used the discipline process fairly and consistently, the company required a second review before a store manager could take disciplinary action against an employee.  There were five stages in the published process the company said it would follow when disciplining RSA’s:

Cynthia and Leann’s Store Manager fired them because the two women did not meet their sales quotas five times during a 12-month period. These two, however, thought Cellular One really fired them for their age and not for their job performance.  They believed Cellular One wanted to get rid of older workers because the younger, text messaging RSAs also failed to meet their quotas, but the younger sales people were not fired.  Both Cynthia and Leann filed age discrimination lawsuits against Cellular One pursuant to the ADEA.

In court, Cythia and Leann argued that Cellular One’s inconsistent application of its disciplinary policy showed the company’s bias against its older workers. The two women pointed to the younger RSAs who also failed to meet the company sales quotas.  But Cellular One did not terminate the younger RSAs.  Cynthia and Leann lost their jobs while the younger employees performed in a similar manner, but did not. 

Cellular One was confident that it’s full disciplinary policy would vindicate the company in court.  The company showed that the full disciplinary policy actually stated that the company “reserved the right” to impose different levels of discipline based on the particular infractions of each case. (Whitesell v. Dobson Commc’ns t/a Cellular One, 2008 WL 474270 (W.D.Pa.), 102 Fair Empl.Prac.Cas. (BNA) 1608).

Who Won In Court, and What Does It Mean for Me?

The trial court found that Cellular One could not make “exceptions” to its progressive discipline policy because most of the so-called “exceptions” allowed younger workers to keep their jobs, while workers over 40 were terminated.  When an “exception” causes a protected class (like employees over 40) to be treated worse than the group of employees as a whole, then each so-called “exception” is actually an act of illegal discrimination.

The court noted that Cythia and Leann “pointed to such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Cellular One’s] * * * reasons for its action that a reasonable [jury] could rationally find them unworthy of credence.”  In otherwords, because Cellular One’s story was full of holes, the women’s case was allowed to proceed to trial.

The Undercover Lawyer’s Take-Away Tips:

1. Know Your Company’s Discipline Policy. Find a copy of your company’s discipline policy.  Usually it is in an “employee handbook” or “personnel manual” that employees are given on the first day of work.  Keep a copy at your desk, and another copy at home.  Does it talk about “progressive discipline”?

2. Does The Policy State When Exceptions Can Be Made? Many companies have discipline policies that allow exceptions “for extreme circumstances,” such as employee theft or when an employee commits a felony.  This is actually good, because it indicates that exceptions should NOT be made for simple performance or “attitude” issues — which are frequently caused by the attitude of the supervisor, not the worker.

3. Always Document Exceptions To the Policy. Detailed record keeping is a HUGE part of appearing credible and honest in front of a judge or jury.  If you can use your notes to state the names, dates, and basic facts of when your supervisors did not follow the company’s discipline policy, but your supervisors themselves have no notes, who do you think will be more believable?  That’s right: You!  So keep a journal of any employee discipline that you know of or hear about when the policy is not followed perfectly.  And you don’t need to keep a little book at your desk marked “Journal”.  Instead, just write an email and send it to your personal email account, like Yahoo Mail, Hotmail, or Gmail (but beware employers who monitor email).  Or, simply write the facts down in an innocent looking palm-sized spiral notebook labelled “Grocery List.”

Age Discrimination: Beware a Sudden Change in Your Performance Appraisals

Starbucks announced it is closing 600 stores. American Airlines announced it is laying off 900 flight attendants. Polaroid is shutting down two manufacturing plants. The computer chip maker AMD is cutting 10% of its workforce. From coffee to cameras, to computers to planes, people across all industries are facing mass layoffs and the potential to lose their jobs.

As an employment lawyer, I always advise companies that the only safe way to conduct a layoff is to follow this simple rule: “Last hired, first fired.” Defense attorneys love this way of selecting employees for layoff, because it is objective. There no way for discriminatory motives and biases to creep into a system that is based solely on dates of hire.

But do companies use “Last hired, first fired”? Usually not. Sometimes the cuts are spread among various departments; a new worker in a crucial department keeps her job, while a longtime employee in an expendable department loses his job. Or take Starbucks, as an example. When Starbucks closes 600 stores, all the employees at each of the 600 stores should get a pink slip. But the CEO, Howard Schultz, has said that it will try to find work at its other stores for as many of the displaced employees as possible. That’s where Starbucks and other companies usually do not follow the “Last hired, first fired” rule. Employees with long tenures at the company will get passed over for jobs at other stores. Newer employees with less experience will get hired into nearby Starbucks locations that remained open.

Why does this happen? (Keep in mind that Starbucks is just a theoretical example here). The companies will say it’s based on “job performance.” Yet, how is a newer, less experienced employee with far less training able to outperform a long term employee? Job skill is rarely the real reason that long term employees are left unemployed while new employees keep their jobs.

Often times the real answer is that the decision maker just “likes” the newer employee better. People tend to hire people who remind them of themselves. The corollary is that people do no hire, or retain, employees who do not remind them of themselves. If the reason that an employee does not remind the hiring manager of themselves has to do with a protected class – such as the employee is of a different age, different race, is disabled, is a different gender – then this very human tendency to hire people like ourselves is not just a human tendency; its illegal discrimination.

How Can You Show the Reason Was Illegal Age Discrimination?

One of the main ways displaced worker show that they were not hired, or not retained, because of their age is through suspicious timing of employee discipline. Boeing is one company who learned this lesson the hard way in a real case that serves as an excellent example.

Real Lawsuit: Eileen McKee worked at Boeing for 30 years. But she didn’t retire. Even with all that seniority she was laid off. Here’s what happened.

Boeing announced that it would be laying off employees from many different departments. Eileen worked in a human resources related department with one other (younger) employee and one manager. Eileen wasn’t nervous about the layoffs because she had more seniority and also had a history of positive appraisals from her manager.

At the same time Boeing announced the layoffs, however, the company also announced that it would use a new employee rating system “to compare employees in comparable positions.” The new system labeled Eileen and her co-worker as “comparable” even though their job duties did not overlap.  Her co-worker was also female, but was 36 years old. Using the new rating system, Elieen’s manger gave Eileen a score of 17. Eileen’s manager gave the younger co-worker a score of 39. As a result, Boeing laid off Eileen and retained the younger, less experienced co-worker.

Eileen immediately filed a state law age discrimination claim, but lost. She did not give up. Next she filed a age discrimination lawsuit in federal court under the Age Discrimination in Employment Act (ADEA). Boeing tried hard to keep Eileen from getting her case in front of a jury. The company filed a motion for summary judgment, in which the it asks the court to throw out Eileen’s case, arguing that she did not have any evidence that she was selected for layoff due to her age.

But the court did not throw out Eileen’s case. In fact, the court just allowed Eileen’s case to go to a jury trial. Eileen defeated Boeing’s summary judgment motion by arguing that her evidence of age bias was the rapid change in her performance rating, from all positive for years to a low score of 17 on the new employee rating system. Less than a year before she got a poor rating, Eileen’s same manager gave her a “glowing” performance appraisal. Suspiciously, the area in the glowing appraisal where Eileen scored the highest was at first included in the new ratings system, but was later removed. Although this one change would not have given Eileen a higher score than her younger co-worker, it was strange enough that the judge ruled that a jury could conclude the change was done in order to give the older worker, Eileen, a lower score. (Cotter v. Boeing Co., E.D. Pa. No. 05-5053, 6/26/07).

The Undercover Lawyer’s Take-Away-Tips:

1. Be Highly Suspicious of Any Sudden Change in Your Evaluations, or the a Change in the Evaluation System. These sudden changes appear to outsiders like a calculated plan to get rid of the people whose performance ratings suddenly go down. Why does the company suddenly decide to get rid of employees who have historically performed well? Is it age? Gender? Race? If you can show that your performance could not be the “real reason” you were demoted or laid off, then a judge or jury will quickly make a connection between your termination and your age. In Eileen’s case, the judge said that the “change in criteria, in the absence of a reasonable explanation, may raise an adverse inference that the change was initiated to adversely handicap [Eileen’s] final score.”

2. Push hard to keep your appraisals at least “satisfactory”. Many, if not most, companies use a 1 to 5 rating scale, where 5 is excellent and 1 is consistent failure to meet expectations. A score of “3” is usually labeled “satisfactory.” Now, be aware that your manager may believe in their mind that a 3 out of 5 is a very bad score. But if the appraisal form says that a score of 3 is “satisfactory”, then guess was a jury is going think a score of “3″ means?  That’s right, your performance was satisfactory — good enough, competent, acceptable.  If you can keep your performance reviews at this level, then it will be much more difficult for your employer to suddenly claim that your performance is the “real reason” you were demoted or laid off. And you will be well on your way to defeating a false case against you and having a strong age bias claim.