Gradual Workplace Harassment Is Not Legal Harassment

You complain to your manager or to H.R., and what do they tell you?  There’s no evidence that you are putting up with an illegal hostile work environment.  But you are having trouble sleeping, you feel sick when you think about work, and even though you try not to you spend most of your time worrying about work, you think about little else.

How can your boss or H.R. excuse this?  How can they possibly claim that nothing is going on?

Acme Markets said that Gloria Nieves was just complaining about good old fashioned teasing among co-workers.  Some of it may have been insensitive, but Acme claimed that no one thing that happened to Gloria at the deli where she worked amounted to illegal harassment.  But Gloria knew differently.  She took Acme to court, where the court said even when single incidents don’t amount to illegal harassment, courts consider everything that happened to Gloria “as a whole” before deciding whether or not the company’s treatment of her added up to illegal harassment.

Find out whether Gloria won or lost after the court ruled that Acme should have “viewed as a whole” all the harassment that Gloria was putting up with.

The Gradual Harassment of Gloria Nieves

Gloria is Hispanic and born in Colombia.  She began working part-time at Acme Deli in Middleton, Delaware in November of 2001.  When Acme opened a larger store in Middleton two years later Gloria applied for a full time “senior night associate” position in the new store.  Based on her seniority Gloria got the full time job working nights at the new location.

The hostility toward Gloria began as soon as she began working full time at the new store.  She was told that she wasn’t allowed to speak Spanish to Spanish speaking customers.  Her manager wondered out loud how Gloria could have possibly won the full time position because her “English isn’t good.”  Another time a co-worker questioned whether Gloria had a “green card”.  Gloria was called “stupid” when she asked questions and was treated like she had never been educated.  When the topic of drugs came up, a co-worker would say “ask Gloria because she’s from Columbia.”  When Gloria’s husband Emilio came to the store she had to listen to them say “de plane, de plane,” referencing a Hispanic character from the show television show “Fantasy Island.”

Gloria complained to management and to H.R. about all of this, of course.  Management’s response was to simply tell Gloria “Don’t worry.”  In the eyes of management none of this harassing conduct amounted to an illegal hostile work environment.  It was all just good fun and joking around.  Her complaints were not taken seriously at all.  For instance, once when Gloria made a complaint to a supervisor, the supervisor simply waited until Gloria turned her back to walk away, and then he started laughing at her — and encouraged Gloria’s co-workers to do the same.  Gloria was even called “Chihuahua” from the Taco Bell commercials.

Gloria began to cry frequently because of the workplace harassment.  The Acme Deli, however, blamed her crying on “marital problems.”  Gloria finally went from work to the emergency room due to chest pain, caused by the hostile workplace she had endured for so long.

Instead of taking responsibility for Gloria’s deteriorated physical condition, Acme Deli accused her faking her illness.  The next week the Deli Manager suspended Gloria.  Gloria filed harassment claims with the EEOC based on her national origin.

Acme Deli responded to Gloria’s EEOC complaint by arguing that none of the conduct Gloria complained of was “severe enough” to be considered unlawful.

The EEOC sent a letter to Acme stating that it’s investigation indicated that Acme had engaged in discriminatory practices and violated employment laws.  After the EEOC scheduled a conciliation (settlement) meeting, Gloria filed suit in court.

How Did Gloria’s Harassment Case Against Her Employer End?

In court Acme against argued that Gloria’s suit should be dismissed because the harassment Gloria suffered was not “severe or persuasive”.  But the court applied a test used by the Supreme Court, call the “totality of thecircumstances test”.  Under this test:

“workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, …a mere offensive utterance [or] whether it unreasonably interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).

Acme claimed that Gloria had only identified isolated incidents, while Gloria argued that a set of multiple incidents makes a pattern, and an illegal pattern at that.  The court reviewed all the incidents, and found that “while each act/comment, in isolation, might be perceived as insensitive, taken as a whole, a reasonable jury might conclude that the acts/comments were motivated by adiscriminatory purpose.” ( Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

The Undercover Lawyer’s Take-Away Tips for Fighting Workplace Harassment:

Can Your Abusive Boss’s Unattainable Goals for You Actually be Discrimination Against You?

A performance improvement plan (or “PIP”) is not discriminatory by itself.  But scores of employees who have bought “Work Laws Exposed” and utilized their free phone consultation with me have described feeling like their boss was trying to “get back at them” by setting astronomically high goals at the employees next appraisal or in a PIP.

• One female employee told me how she used FMLA leave to take her autistic son to a series of therapy sessions; soon after returning to work her boss placed her on a PIP and assigned her completely unattainable goals that she had to meet “or face termination”;
• One older male employee told me how he noticed that his boss, a first time supervisor, was driving out all the employees who were also older and more experienced; when the employee told HR that the supervisor was targeting older workers and pushing them out of their jobs, HR told the supervisor, and the supervisor immediately place the employee on a PIP that included goals no one could possibly satisfy.

Although these are but a couple of examples of how a bully boss can create a hostile work environment by setting unfair goals for employees, the truth is that I hear examples of this happening each and every week.  The bad news angle of this: bosses probably won’t stop doing this anytime soon.  The good news angle?  Now there is something more you can do to fight back against your bully boss.

Why Does This Happen So Much?

What your boss is doing is trying to get back at you, punish you, or drive you out of your job by “focusing on performance.”  That’s what HR and defense lawyers (which I am one, if you recall) tell bosses to do.  “Don’t call employees names or taunt them, because that discriminatory.  Instead, focus on performance.”  Of course what lawyers and HR people mean is to focus on the employee’s actual performance — to hold that person accountable to the same standards that every other employee is held to.

But is that what actually happens?  You know the answer if you are reading this.  The boss doesn’t merely hold the employee to the same standards as others.  The boss is an angry bully who is determined to get rid of the employee, so the boss creates crazy “work plans” and PIP’s that Superman could not satisfy.  And here’s the key — this is the part you need to identify in your own workplace — the “extra” part of a work plan or PIP, the part that goes beyond what other employees have to achieve and is solely imposed on you so that you will be “set up to fail”, THAT is what makes it discriminatory.  And by discriminatory, I mean illegal.

You can complaint to the EEOC or your state’s Dept of Labor and they will punish your company and your boss.  Does that sound too good to be true?  Well, here is an example of just such an employee who recently took his boss and company to court for this very thing.

Recent Real Life Case

In Willnerd v. First National Nebraska,(http://www.ca8.uscourts.gov/opndir/09/03/073316P.pdf) Jeff Willnerd sued his bank-employer for violating the Americans with Disabilities Act (“ADA”).  What the bank really did, however, was run Jeff out of his job by telling him that he had to meet crazy-high loan production goals or be fired.  Other employees with Jeff’s same job did not have to meet these same goals.  No one at that branch of the bank had ever been assigned such high production goals, nor has any employee since.  Since Jeff was being treated so differently than he other employees, he needed to ask himself, how am I different?  Why single me out and not the others?

The bank claimed that Jeff was terminated as part of an economically motivated reduction in force — and that Jeff specifically was selected because of his poor performance.

Jeff believed that reason he was singled out was because of his voice.

Jeff Willnerd began working at the bank in Beatrice, Nebraska in 1982.  He ultimately worked there for 20 years, but in 1999 his voice started to cut out on him.  His condition “baffled his doctors” and “it took considerable exertion for [him] to speak.”  By 2001 his mysterious medical condition had reduced his voice to a mere whisper.  Even then, however, his numerical production numbers and performance reviews were comparable to other employees at the branch.

Despite his solid performance one of the corporate supervisors, Christopher Kisicki, expressed concerns about Jeff’s voice to other employees, asked customers about their perception of Jeff’s voice, and was present when Jeff’s co-workers made fun of his voice.

In 2001 bank headquarters in Omaha began consolidating branch functions at the corporate office.  In February of 2002 Kisicki and another corporate supervisor, Ulferts, met with employees at Jeff’s Beatrice branch about cross-selling services and increasing sales.  Later Kisicki and Ulferts testified that they were mainly concerned with the under performance of two personal bankers at the time.

Despite that, only Jeff received a production quota after the meeting.  Jeff characterized the quota “as an impossible to meet goal established to guarantee his failure.”  Kisicki and Ulferts told Jeff to double his production volume from $2 million to $4 million, or he would be fired.  The court noted that this goal required Jeff to “single handily outperform the entire branch’s mortgage-lending voume at a level the branch ultimately failed to achieve at any time prior of following his termination.”

In May of 2003 Ulferts met with Jeff and told him that he had 90 days to improve his “overall proactive sales effort” or he would be fired.  No other employee at the Beatrice branch of the bank received such an ultimatum.  Although Jeff’s sales production did increase, he did not meet his production quota.  Ulferts described Jeff’s improvement as “a good effort.” Nevertheless, in September of 2003 Ulferts terminated Jeff from the bank where he had worked for 20 years.

Jeff Willnerd Sues First National Bank

Jeff filed suit in court, alleging that the bank fired him from his job in violation of the Americans with Disabilities Act.  Specifically, he said he was discriminated against when the Ulferts and Kisicki assigned him unattainable quotas, then terminated him for failing to meet the un-meetable quotas.

The bank tried to argue that it was solely concerned with Jeff’s performance numbers, that Jeff had been warned that he would be fired if he didn’t “meet his numbers” and that when he didn’t meet them he was fired.

Court’s Holding About Unattainable Goals

The court found for Jeff, finding that the bank’s “strictly performance” argument for terminating Jeff was a mere subterfuge for it’s desire to get ride of him because of his voice condition.  The court made the following statement, which is worth copying and keeping on hand at your desk:

The impossible to meet goals, together with Kisicki and Ulmer’s comments and inquiries about Jeff’s voice, made the bank’s “strictly performance” reason for firing Jeff unbelievable.

The Undercover Lawyer’s Take-Away Tips:

1. Ask Yourself if Your Performance Goals are Realistic: You should not have to live under the pressure and threat of having to meet an astronomical performance goal or face termination from your job.  A court will be willing to at least evaluation whether your PIP or appraisal was truly meant to increase performance, or was actually a screen for a discriminatory desires to terminate you.

2. Compare your performance goals to others: If you DO feel that your bully boss is assigning you impossible to meet goals in a PIP or appraisal, double-check yourself by comparing your performance goals to the goals assigned to employees who are at your same level.  This was a big part of why the court sided with Jeff in the case above; no other employees had any performance quotas, let alone quotas as difficult to satisfy as Jeff’s.

3. Listen and Document What You Hear. Your case becomes many times stronger when you document discriminatory sounding remarks made by management.  Jeff found employees who testified that management allowed people to make fun of Jeff’s voice, and management actually talked to customers about Jeff’s voice.  It’s this evidence combined with the impossible quotas that together put Jeff’s case over the top.  Write down everything you hear that might even possibly be interpreted as discriminatory and you’ll give your case a huge boost.

Your Boss Ever Retaliated Against You in Your Appraisal or ‘PIP”?

If you have experienced this or seen it at your own work, tell us about it in the comments section below or in the forum at http://www.undercoverlawyer.com/forum/

If you want more practical insider secrets to taking back your workplace from a bully boss or harassing supervisor, check out the store page at http://www.undercoverlawyer.com/store-page

Faking Disability? And, Lawsuit Caused by Abusive Boss

You decide if this police chief was faking his disability:

Former police chief for city was no longer disabled, and thus, he was not entitled to continue receiving not-on-duty disability pension. While former chief could not work as ordinary police officer because of injury to left knee, his disability did not prevent him from functioning as a supervising law enforcement officer in an administrative position within the police department. A videotape of the former chief performing as rodeo clown showed him running, jumping, climbing fences, dancing, running from bulls, leaping on top of and off barrels, climbing into and carrying barrels,and being rammed by bull while crouched inside a barrel.
Rhoads v. Board of Trustees of City of Calumet City Policemen’s Pension Fund, 810 N.E.2d 573 (2004)

Nordstrom Agrees To Pay $292,000 to Settle Harassment Lawsuit Caused by Abusive Boss

Employees complained that an Alterations Department Manager made harassing remarks to Hispanic and black employees.  Despite the employees’ complaints, the harassment did not stop.  Nordstrom recites that it investigated the matter, but found “no evidence of harassment.”  One employee, Gloria Pimental, filed a formal complaint with the EEOC in 2006.  A a year later, in 2007, the EEOC filed a case against Nordstrom.

As a result of this settlement Nordstrom will make payments to 10 different employees and agreed that its managers will undergo harassment training twice per year, instead of every two years.

Curt’s Take: I think I know why Nordstrom said it couldn’t find evidence of harassment and discrimination… it’s because it was looking for proof that the Alternations Dept Manager called the Hispanic and Black employees racial names.  It truth, I’m near certain that she was a bullying jerk to everyone in the department.  She was a boss who made her employees feel harassed, stressed, and scared for their jobs.

When Nordstrom looked into it, however, they just saw a mean jerk.  Nordstrom didn’t see a person who used racial epithets or told racials jokes.  What the company was missing, however, is that the target of SOME of the bully-manager’s ire DID belong to protected classes.  Those people stepped forward and said “Hey EEOC!  Over here! We’re Hispanic and black and we’re being harassed by our boss.”  That’s when the EEOC stepped in.  Nordstrom could have avoided this huge verdict by making sure its managers don’t harass and abuse employees who genuinely try hard and want to do a good job.

To learn more about all the techniques that can save you from a Bully Boss or Hostile Work Environment, click HERE.

Employees File Complaints, Employers Pay

Janitor’s EEOC Complaint Ends With Order to Pay $350,000
A nursing home company, Skilled Healthcare Group, must pay a class of Hispanic employees it discriminated against $450,000 “and provide significant remedial relief [because they] were subject to harassment, different terms and conditions of employment, promotion, compensation, and treatment.”  The EEOC ordered the company to pay Hispanic employees because the employees had been forbidden from speaking Spanish at work, BUT, other ethnic groups were allowed to speak their own native (non-English) language while working for Silled Healthcare.  Because the compnay treated employees differently with respect to their national origin, the EEOC had filed suit against the company in Federal Court in California, alleging discrimination in violation of Title VII of the Civil Rights Act.

The suit stemmed from a complaint filed by a single employee, a janitor named Jose Zazueta.  Skilled Healthcare fired Mr. Zazueta for violating the company’s English-only policy.  At the same time, however, the company did not terminate or discipline other employees who spoke Tagalog at work.  Here’s a quote from the EEOC’s own press release about the details:

The EEOC identified a total of 53 current and former Hispanic employees at facilities in California and Texas who were subjected to disparate treatment and harassment based on their national origin and shared Spanish language. The EEOC alleged that some workers were prohibited from speaking Spanish to Spanish-speaking residents of the facility, or disciplined for speaking Spanish in the parking lot while on breaks. Additionally, the EEOC alleged that defendants gave Hispanic employees less desirable work than non-Hispanic counterparts, paid them less, and promoted them less often.  http://www.eeoc.gov/press/4-14-09.html

English-Only rules can be legal IF the employer demonstrates that the rule is necessary, and the employer also enforces the rule the same way with all employees.  Employers who fail to evenly enforce English-Only rules commit discrimination, whether the employer intends to discriminate or not.

Two Women Complain To EEOC and Employer is Ordered to Pay $267,000

Tineke Meyer and Karina Mercado worked for Sunfire Glass in Arizona.  The company’s owner, Paul McBride, touched them inappropriately, talked to the women about their bodies, used vulgar language with them, and made obscene gestures toward them.  Both women complained repeatedly, but nothing changed.  Eventually both Meyer and Mercado quit their jobs and Sunfire Glass, feeling that they were forced out by the hostile work envioronment.

The U.S. Equal Employment Opportunity Commission filed a lawsuit in September on behalf of employees (EEOC v. Sunfire Glass, Inc., Civ. 08-1784 PHX-LOA).  It alleged that Sunfire owner Paul McBride touched them inappropriately, made obscene gestures, talked about their bodies and used vulgar language.  The women repeatedly complained, but no action was taken, the EEOC said. Both resigned and filed complaints with the EEOC.

The EEOC filed charges against Sunfire and it’s owner Paul McBride in September of 2008.  On April 13, 2009, the court awarded Meyer $160,278, and awarded Mercado $106,781.  The amounts awarded to each woman included back pay, interest, and compensatory and punitive damages, plus interest until the amounts are paid.  The punitive damage amount awarded to each plaintiff was $50,000.

Sonic Drive-In Franchise Sued For Disability Discrimination

On April 13, 2009 the EEOC filed discrimination charges against a Louisiana based Sonic Drive-In franchise because the restaurant refused to hire a qualified applicant due to the applicant’s disability.  Sonic discriminated against the applicant when it refused to hire her as a car hop or cook because of her speech impediment.  The suit seeks to force Sonic to pay the applicant back pay, compensatory damages, punitive damages, and interest.  The EEOC also stated that “ADA charge filings with the EEOC nationwide increased 10% in Fiscal Year 2008 to 19,543, the highest level of disability discrimination charges since FY 1995.”  For the full story click here: http://www.eeoc.gov/press/4-13-09.html

I’m Being Harassed at Work! What Can I Do?

By Jenn S.

Illegal harassment in the workplace is no joke.

Workplace harassment involves unwelcome and offensive conduct that is based on race, color, national origin, sex (including pregnancy), religion, disability, or age (age 40 or older). Many states also have other protected classes so it is important to be familiar with your own state’s discrimination laws.

Some examples of harassment include offensive or derogatory jokes, racial or ethnic slurs, pressure for dates or sexual favors, unwelcome comments about a person’s religion or religious garments, or offensive cartoons or pictures, to name a few.

Keep in mind, however, that not all workplace harassment is illegal. Discrimination laws generally do not prohibit simple teasing, offhand comments, or isolated incidents that are not particularly serious. For workplace harassment to be illegal, the conduct must either be severe (meaning very serious) or pervasive (meaning it occurred with frequency).

One instance of harassing conduct is generally not sufficient to meet the definition of illegal harassment, unless the conduct is very serious, such as a physical assault. If you believe you are being illegally harassed at work, there are several steps you should take right away to protect yourself:

1. Tell the Harasser to STOP:

Be direct – say what you feel. If you are not comfortable with the comments or conduct being directed toward you, be sure to let the actor know – right away. Make it clear that their comments or conduct are unacceptable and that you expect it stop immediately. One caveat: You are not required to confront the harasser. However, it is a great first step if you feel comfortable doing it. Your direct admonishment to the harasser may stop him or her in their tracks without having to resort to more serious measures.

2. Write it Down:

If you are being treated in a way that you don’t think is appropriate by any person at work, write it down. Dates, times, quotes – it is ALL important. The better the documentation, the better your case. Any notes are better than none – steno notebook, computer file, or cocktail napkin – it all works. Most important item – DATE. Don’t leave it out.

3. Tell a Member of Management:

If things don’t change after you’ve told the harasser that you’re not comfortable (OR if you simply do not want to confront your coworker), tell you boss or go straight to HR.

Take a look at your employee handbook and determine how it is that you bring a complaint of harassment. Follow any procedures that are outlined and if your company does not have any sort of procedure outlined, just talk with your supervisor.

Any inaction on their part will only add fuel to your fire, should you actually be forced to bring a sexual harassment complaint through a state agency.

Another caveat: If it happens to be your supervisor that is doing the harassing, go above their head to the next person in control, or any other supervisor-level person that you feel comfortable with, including HR.

Don’t just share with coworkers – You must go to HR or some supervisor to report the problem because an employer will not be held legally responsible for conduct that they did not know about. The only way an employer can know is if you tell them – and that is generally only through HR or management.

4. Demand Action:

Don’t let your employer sit on their laurels when it comes to your complaint – demand action and a result. Be sure to ask your employer for written evidence of their investigation into your complaint, as well as a written explanation of their results and findings.

It is your right to know what your employer is doing to address your concerns and if the employer’s action is ineffective in stopping the harassment, you probably have a case to take to a lawyer or your state agency that enforces discrimination laws.

5. Don’t Wait:

Do not wait to report the problem. As soon as you feel that you are being harassed, make your move, being it confronting the harasser or making a report to management.

Waiting could subject you to further acts of harassment that may worsen in severity or frequency – who wants that? Waiting may also result in keeping certain instances of harassment or discrimination from being considered should you wait too long to file a formal complaint through a state agency or attorney.

So don’t sit around thinking about it – if you feel you are being illegally harassed, stand up and fight NOW.

Hostile Workplace Podcast #5: “I Don’t Know What FMLA Is, But I’m Sure YOU Don’t Qualify For It”

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Have you heard a supervisor admit they don’t know about something with one breath, but then proceed to tell you what you should do about that thing in their next breath?  Listen to one of my readers, Vicki, tell her story dealing with that exact scenario.

Once Vicki used FMLA, others at her work wanted to use FMLA leave too.  This angered her supervisors, who launched a campaign to “get” her.

Listen to Podcast Episode #5 now to hear how Vicki has fared against her company’s attack (and don’t expect a nicey nice happy ending).

You can listen to Podcast #5 through the player here on UndercoverLawyer.com.

Or, if you have iTunes you can click on the link below to listen there and subscribe to the podcast for free:

http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

The Quick Tip for this episode is an update on the subject of Male to Male sexual harassment. New cases are being filed against restaurants you’ve heard of.

Finally, the Hostile Workplace Podcast now has a listener comment line: (360) 450-5750.

After listening to the show call in and let us know what you think of Vicki’s story, or call in and share your own workplace story. You may find yourself on the front page of the iTunes “Careers” section!

Tweeters Hate Working, Especially on Mondays

Tracking comments on Twitter about work related topics has been like getting to see all the morning drive-time auto collisions, all across the country, all at once.

People on Twitter like to gripe, and they like to gripe about work.  The following comments come from tracking the words “Hate work” over the last 48 hours, which includes the weekend!  You would think there would be less anger expressed toward one’s job on the days most people are off work… but, maybe those who are forced to work weekends are especially vocal with their angry dismay over laboring away while their friends play (one Tweet said almost exactly that).

Without further ado, here’s the best of hating work from Twitter posts during the last 48 hours.  (If my readers find this “best of Twitter” concept interesting, I have a nice collection of posts on peoples’ feelings toward their “boss” and “job” that could also become a blog post).

• I hate the feeling of a hang over and being drunk yet again and having work tomorrow. It freeking suxxxxx afsfgshjsjdjdj
• Missing my small group peeps and my Sunday night dinner date with friends. I hate work.
• I can’t sleep! I have to be up at 5. I hate going back to work after vacation!
• dreading work in the morning!!!! i hate mondays
• Headed to work in a dumb smiley happy fog. I hate people like me.
• I hate it when I arrive at work thinking there’s nothing big on today, then remember I’ve an important presentation.
• Woke up from possibly the best dream ever. Sometimes I hate having to work because it means getting out of bed.
• I hate those work nights when you have to force yourself to go to bed. I’ll be visiting an apothecary come morning for a caffeine potion.
• oh work. I hate Mondays.
• At work, hate monday’s!!!
• I hate Monday mornings, up and getting ready for work – gah
• I hate hate hate Mondays! I am dreading work
• Ahh Monday, I hate Monday. Back at the work, starting the week all over again. Is it Friday yet?
• On my way to work…I hate Mondays
• Another Monday at work and I hate it. I want to play!
• On the train to work I freaking hate Monday mornings
• class and work. i hate mondays
• happy monday, indeed….my interns hate me, my attendings don’t like me….life at work is awesome!
• Monday Morning 5:22!!! I hate work
• Hate missing work, always come back to a messy desk and everyone is mad at you for missing one day.
• I hate when people walk behind me while I’m at the computer at work. @_@;;
• I HATE when people have music on their sites that autoplays-it causes much stress in my marriage since I work in the office with my husband.
• No more wearing sandals at work It’s still summer! I hate dress codes….
• off to do two things I hate: work and homework. sweet. someone do something rebelious for me.
• i hate my new hours at work, i might as well just live at the store.
• I hate people bitching about things at work, because it cause me to bitch about them bitching…
• Have I mentioned yet today how much i hate work?
• managed to survive the day. only five left. few issues at work ontop of the usual shit. hate not being at meetings. gah
• I hate doing this work that I don’t care about only out of fear of not getting accepted anywhere outside of AZ when I graduate.
• LOL I hate math with passion but I work for finance =\
• Blahhh I hate weekends where I don’t work. Maybe I will try to get a part time position with mac when girl scouts is over
• wtf. i hate work and wwe atm.
• The older I get the more I grow to hate the little pukes that work at Dairy Queen.
• I hate the stupid white lights at work! How the hell am I going to cope with this until the end of the month when we move office?
• I hate work. I just want it to go away. I can’t stand the little freshmen with their friends thinking their all cool.
• i hate work! the only good part is the free sandwich and cookies. and the aychecks of course…
• I hate working Izea fest will be going on 8 miles from my job and I can’t even go because I have to be at work next week
• I hate work. and the male species.

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.