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.”

iTunes Selects The Hostile Workplace Podcast for “New & Notable” Recognition

“The Hostile Workplace Podcast” is currently a “New & Notable” selection in iTunes.  Thanks so much to everyone who has visited iTunes and subscribed to the podcast and left a postive comment in iTunes.  Each of those things is like a vote that the Hostile Workplace Podcast should be featured more prominently.  And it’s working.  This is just one small way that we can bring more awareness to the issue of bullying bosses that turn good jobs in hostile nighmares that no one deserves.

If you would like to see for youself where the Hostile Workplace Podcast is featured in iTunes just follow these steps: 1) Open the iTunes software; 2) Click on iTunes Store; 3) Click on “Podcasts”, then “Business”, then “Careers”.  The “New & Notable” box is the top center feature.  You may have to click to the rigth one time inside the “New & Notable” box.

If you would like to go directly to the Hostile Workplace Podcast in iTunes you can use this link to go straight there: http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

Hostile Work Place Podcast #2: Sex Harassment

In The Hostile Work Place Podcast, Episode #2, we discuss the most explosive of work subjects, sexual harassment.  During the show we explain how the U.S. Supreme Court recognizes two types of sexual harassment:

1. Quid Pro Quo (latin for “something traded for something”)
2. Hostile Work Environment based on sex

We also explain how you can evaluate whether or not an action can be considered sexual harassment by using the idea of “unwelcomeness”.

If unwelcomness is established, a court will look to four factors to evaluate whether a hostile work environment based on sex exists.  Those four factors are:

1. Frequency of the offensive conduct
2. Severity of the offensive conduct
3. Whether the offensive conduct was physically threatening or intimidating
4. Whether the offensive conduct interfered with the performance of your job duties

The case where these four factors were discussed most recently is Reeves v. C.H. Robinson Worldwide Inc. (April 28, 2008).

The two U.S. Supreme Court cases mentioned in the show are Burlington v. Ellerth and Faragher v. Boca Rotan.  Summaries of each and links to downloadable versions of the full case are immediately below.  However, if you would like to go straight to the forum where we are discussing this episode of the podcast just click HERE.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

Facts of the Case

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik’s advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik’s conduct despite her knowledge of Burlington’s policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.

Question

Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor’s harassing conduct?

Conclusion

Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth’s.

Faragher v. City of Boca Rotan, 524 U.S. 775 (1998)

Facts of the Case

After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher’s supervisors’ conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher’s supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.

Question

May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

Conclusion

Yes. In a 7-2 opinion delivered by Justice David H. Souter, the Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim. “The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher’s],” wrote Justice Souter, “[u]nder such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct.”

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.