Age Discrimination Video Program

Panelists

Laurie Knocke, a principal at Gray Plant Mooty who practices in employment law. She regularly counsels employers and individuals on a wide variety of personnel-related matters, including discrimination and reductions in force, and represents them in all stages of complex civil litigation, administrative actions, and in alternative dispute resolution.

Nicholas May, a partner with the law firm of May & O'Brien. He represents clients in their claims for discrimination, retaliation, failure to pay wages, and other violations of state and federal law.

Nicholas Pladson, a trial attorney with the Minneapolis Office of the Federal Equal Employment Opportunity Commission. The Commission enforces the Federal Age Discrimination in Employment Act as well as other federal laws that prohibit discrimination based on race, gender, disability, and other protected characteristics.

The program was hosted by freelance journalist Rondah Kinchlow and produced by the Department of Human Rights in collaboration with SPNN. Check SPNN’s web site for the latest airtimes.

Introduction

Introductory comments -- Rondah Kinchlow: I'm Rondah Kinchlow, and today we're going to be talking about age discrimination in employment, and we've got a lot to talk about. In 2007, federal job discrimination charges filed with the Equal Employment Opportunity Commission experienced their largest increase since the early 1990s. There were more charges of discrimination based on race, age, gender, disability, national origin, and religion. But of those types of discrimination that I've just named, what category had the biggest increase? Age discrimination. Cases were up 15 percent over the previous year. That's the largest jump since 2002.

Today we're going to talk about what age discrimination is and how the Minnesota Human Rights Act and the Federal Age Discrimination in Employment Act protect workers from being fired, not hired, not promoted, or otherwise treated adversely because of their age. And if you're a younger worker, it's important that you watch this, too. One day, you're going to be an older worker. And while federal law protects only those who are over the age of 40 from age discrimination, the state Human Rights Act covers all workers who are over the age of majority.

Kinchlow: One of the best places I always find to start is to lay out the groundwork. What is age discrimination? How would you define it?

Knocke: I would define it as treating someone differently because of their age, taking their age into consideration as an employer when you're making the decision about whether to hire someone, whether to promote someone, whether to fire someone, because according to the law, both federal and state law, age should not be part of your thinking when you make those decisions.

Kinchlow: And I would imagine that it's probably kind of hard to prove or to identify that this decision was made based on the employee's age.

May: It can be difficult in some cases. In others, it's not so hard, depending on if an employer sometimes comes out and says, "You're too old," or "I want to get a younger person in here." That does happen on occasion. But really, the courts have two different ways -- or two different proof schemes -- to demonstrate what age discrimination is. One is what they call direct evidence, which is what I just described, where we have proof, direct proof, that age was a motivation in the decision. The other is through circumstantial evidence that, look, this person was older and was let go, and the employer replaced them with a much younger person who might be less qualified or not have some of the same skills that the other person did. Those are some of the circumstantial facts that can be used in proving an age discrimination case.

Kinchlow: What if it's an economic decision?

Pladson: Well, typically, an economic decision such as market forces or possibly a downsizing for a company will have an effect on who a company decides to release or let go. However, it cannot be done on the basis of age. Typically, a reduction of force will occur based on any number of factors such as productivity, the department size, the recency of the hire, those types of things.

May: I would just dovetail on that. I think that really the crux of any discrimination case, and especially age, is whether the employer's decision was motivated by age. If you can prove that it was motivated by age, you can state a claim for age discrimination.

Kinchlow: But what happens if you want to save $500,000, and your top five salespeople are making $100,000 each, and they are all older than 40 years of age? Is that coincidence? Do you have to back off from your original decision?

Knocke: The U.S. Supreme Court did weigh in on this a number of years ago, and they said that pay is not the same thing as age, even if there's a strong correlation between pay and age, such as you might have a company that has sort of a lockstep salary system, and so every year, you get a certain raise. But they have said that economics is not the same thing as age. So if you wanted to lay off your top five earners in order to cut a certain expense, that would not, per se, be age discrimination. There might be business reasons why that's a problem, laying off your top salespeople, because it's going to hurt you otherwise economically. But making a decision just based on salary alone is generally not the same as age discrimination.

Kinchlow: What's the toughest part about proving cases like this?

May: The toughest part of proving any discrimination case is, again, getting to the motivation. You're trying to get what was in the employer's mind when they made the decision, and that's a very difficult thing to do, because only the employer really knows what they were thinking at the time they made the decision. So a lot of times, when I represent clients, (I'm) getting circumstantial evidence, other factors that were involved, facts that were at issue. And linking those things together to prove that, really, age was the motivating factor can be a very difficult proposition. And a lot of times, when you have a really good suspicion that age probably motivated the decision, a case might not be able to be made just because you don't have all those circumstantial facts in order to prove it.

Kinchlow: So what helps would be memos and emails and --

Pladson: Precisely. One thing that I've heard is that it's a very rare employer that's going to leave a clear trail of, "We made this decision on the basis of age." What we have to do, in most of the cases, is put together the pieces of the circumstances surrounding the decision that make it most likely that the decision was based on age.

May: The courts have also recognized certain circumstances where you can show what we call a prima facie case -- that somebody was within a protected class and let go or had some other sort of adverse action against them. And the employer comes out with an explanation of why they made the decision, such as, "Well, we were downsizing," or, "We were out of money." And the plaintiff can show, "Well, look, I was replaced by a younger person, and I can also prove that the employer's explanation was false or call it into question." Courts have recognized sometimes in those circumstances that, in fact, it was age discrimination. Because once you've proved that the employer's explanation was false and all that you have left is an older person being replaced with a younger person, the only inference that really can be drawn is that age was a motivating factor in the decision.

Kinchlow: We can talk about numbers and whether charges are up or down, but discrimination ultimately affects people, individuals who file charges with the Equal Employment Opportunity Commission, with the Minnesota Department of Human Rights, or with another enforcement agency. To understand how discrimination affects people and what happens when a charge is filed, we're going to look at a few actual cases tonight, charges that were filed with the Minnesota Department of Human Rights. And in each case, the Department conducted an impartial investigation and determined that there was probable cause to believe discrimination had occurred and the Human Rights Act had been violated. We won't use the real names of the charging parties or respondents, and you won't see their faces or hear their actual voices, but these are their stories.

Case 1: At a Small-Town Newspaper

"I had worked for a daily newspaper in a small Minnesota town for 30 years, and at 52, I worked my way up to the job of managing editor. Then one day, I learned that the 27-year-old male city editor who held a lower position, had less seniority, and put in far fewer hours, was being paid more than I was. I complained to the paper's publisher that the situation was unfair, and he said he would consider giving me a raise. Five days later, he called me into his office. He said he wanted to take the newspaper to another level and that I was fired. I asked him to put the reasons I was being fired in writing. He initially refused.

"The next morning, when I came to the office at his request, he presented me with a list of my alleged shortcomings. The list included his claims that I had not conducted newsroom meetings as he requested, that the paper was sometimes late, and that I had put my own children in the paper numerous times. He presented me with a letter of resignation and asked that I sign it. I refused, and filed a complaint with the Minnesota Department of Human Rights.

"Before the day he fired me, the publisher had never expressed any unhappiness with my work. I was being paid less because I'm a woman and 25 years older than the city editor. I was fired because I complained about it. I believe I was discriminated against and that my employer engaged in reprisal based on my age and gender."

Kinchlow: Here's what the Department's investigation found: In answer to the charge of discrimination, the publisher admitted that she was paid less than her younger male counterpart but argued that the difference in pay reflected her continuing substandard performance. She was fired only because her performance had been so bad for so long, the publisher said. The Department interviewed other newspaper employees, reviewed job descriptions, and determined that there was ample evidence to support the conclusion that she had been underpaid because of her age and sex and was fired because she had raised objections. In a negotiated settlement, the newspaper agreed to pay the former employee and her attorney $8,000, and it denies any wrongdoing.

Pladson: I think that's a pretty straightforward case of age discrimination and retaliation. Here you have an individual who is working and who's in the protected class, who is over 40 under the federal law and who is over 18 in the state law, and she was being paid less than a younger worker. When she complained, she was quite quickly terminated. I think that's a pretty straightforward case.

Kinchlow: There are some jobs where you negotiate your salary with an employer. And if it just so happens that you're a better negotiator, and end up with a deal that's twice as big as someone else's, does that person have a right to sue because they happen to be 25 years older and their pay is half?

Knocke: Differences in pay are not always the result of discrimination. They are sometimes the result of negotiations, a result of market forces. You might have a position that's really hard to fill, or a very unique talent, a very unique skill that's hard to replace. This (case is) just a little tough, because this is the managing editor versus the city editor, so it's hard to justify those kinds of pay differentials. And this situation was also extremely tough for the employer, because the explanation that the employee was so bad for so long is apparently never documented anywhere in her file. If it were true that the publisher was not happy with her performance, to tolerate her performance without a record for a very long time makes it very difficult to do something, especially immediately after someone raises an issue of discriminatory pay.

Kinchlow: Does an employer have to give a reason for a termination?

May: No, typically they don't. However, under Minnesota law, there is a statute that says if an employee makes a request within 15 days -- or I think it's 15 working days -- the employer is obligated to give them a written explanation for the termination. A lot of employees don't know about their rights for that and don't exercise that. But generally speaking, after that, the employer doesn't have an obligation to give an explanation.

Kinchlow: Let's look at another case. Under the state Human Rights Act, younger workers are protected from age discrimination. Here's a case in which the Department found that an employer had discriminated against a 22-year-old because of his age.

The opinions expressed in these programs are those of the participants and not necessarily those of the Minnesota Department of Human Rights or of Saint Paul Neighborhood Network (SPNN).