When is Age Discrimination Against the Law?

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Age discrimination at work can be hard to detect and even harder to prove. Many applicants never even know that they were illegally passed over because they were too old. What should you be watching for? How will you know whether what happened to you is illegal? When is age discrimination against the law?

In this blog post, I will review the Age Discrimination Enforcement Act (ADEA) and explain what is and isn’t illegal age discrimination. I will also summarize past cases by the Equal Employment Opportunity Commission (EEOC) on behalf of older employees, including a recent settlement with the restaurant chain Texas Roadhouse.

ADEA Provides 50 Years of Protection Against Age Discrimination

The Age Discrimination Enforcement Act was passed in 1967 to protect older Americans from losing access to jobs simply because of their age. It applies to both employees and job applicants, and protects them against any unfavorable employment decisions based on age including:

  • Hiring
  • Firing or lay-off
  • Promotion
  • Pay, bonuses, compensation, or benefits
  • Job assignments and training

It also protects against retaliation for anyone who assists in an ADEA investigation, proceeding, or litigation, including witnesses.

However, unlike other types of workplace discrimination, which apply to any action taken based on a protected trait, the ADEA applies to one specific group: workers and applicants age 40 or older. In addition, it is only designed to protect against discrimination based on old age. If a policy favors older employees it will be upheld even if 40-year-olds are treated less favorably than their older coworkers.

In 1990, the Older Workers Benefit Protection Act added additional protections to keep employers from canceling older workers’ benefits simply because of cost. In certain limited situations, an employer may be able to reduce benefits based on a worker’s age, but doing so must not drop the cost below what is being paid for younger employees’ benefits.

Examples of Age Discrimination at Work

Every case of age discrimination is different. Some are based on employers’ explicit statements or questions. Others must be inferred based on hiring trends. How closely the discrimination must be tied to the employment decision also depends on the type of employer. Private employers with 20 employees or more are prohibited from making employment decisions “because of” age, but federal employers’ decisions must be “made free from any discrimination based on age” even if there are other factors involved. Here are some examples of successful age discrimination claims and lawsuits through the EEOC:

  • Denying a pay raise after a successful performance review. Enriqueta T. v Dep’t of the Army, EEOC Appeal No. 0120143049 (Sept. 2, 2016)
  • Passing over a 12 year veteran of the position for promotion to program director, in favor of a younger person. Donna W. v Dep’t of Transp., EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).
  • Asking about how many years an applicant had before mandatory retirement. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).
  • Giving an older employee involuntary reassignment to a less desirable position. Kristy D. v Dep’t of the Interior, EEOC Appeal No. 0720160003 (Aug. 10, 2016).
  • Passing over a high-scoring applicant for a trainee program in favor of selectees without comparable experience. Cletus W. v Dep’t of the Treasury, EEOC Appeal No. 0720160008 (Aug. 3, 2016).
  • Harassing an employee because of his age by referring to him as “the old guy” and asking if he could make his way to a meeting or remember things. Bryan T. v Dep’t of Homeland Sec., EEOC Appeal No. 0120122110 (March 18, 2016).
  • Passing over a qualified candidate whose résumé showed he was above age 40 and highly qualified. Alton F. v Dept. of Def., EEOC Appeal No. 0120140428 (April 3, 2014).

Age Discrimination Hits Texas Roadhouse

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) announced a settlement with the Kentucky-based restaurant chain Texas Roadhouse. The company agreed to pay $12 million to a class of applicants who claimed they had been denied front-of-the-house positions (including servers, hosts, assistants, and bartenders) because of their age. In addition, Texas Roadhouse must establish anti-discrimination policies for hiring and recruiting, bring on a diversity director, and submit to monitoring of its hiring records. In its official press release, EEOC New York District Director Jeffrey Burnstein said:

Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.

EEOC trial attorney Mark Penzel added:

Applicants rarely know that they have been denied a job because of their age. When the Commission uncovers such evidence, it will act aggressively and doggedly to remedy the violation.

When age discrimination claims arise, they require skilled employment discrimination attorneys to gather the documentation to prove the case. Because many of these cases involve something not happening (i.e. a person not getting the desired job, or being passed over for promotion), it takes an aggressive approach to make the case that the omission was the result of age discrimination and not some other, legal factor.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know what it takes to win an age discrimination case. We can help you understand your rights to get and keep the work you want, and what your remedies might be if you have faced employment discrimination based on your age. Contact Eisenberg & Baum, LLP, today for a free consultation.

Were Walmart Workers Punished for Taking Sick Days?

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Imagine having to choose between your job and taking care of your sick child. How would you feel if you were told you could go to the emergency room, but it would be treated as an unexcused absence and you could be fired? A recent lawsuit says these are the choices Walmart workers face every day: work or be punished for taking sick days. Were Walmart workers punished for taking sick days?

Photo credit: Mike Mozart — some rights reserved under Creative Commons Public License

In this blog post I will review the report “Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences” and the lawsuit filed by A Better Balance. I will also discuss sick leave laws under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

The Report on Walmart and Medical Absences

In November 2016, the non-profit organization A Better Balance filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of Arleja Stevens, a Walmart employee. She said pregnancy complications had led to sick time and eventually caused her to lose her job at Walmart. The complaint said that company policies related to unexcused absences and medical time off work violated the ADA and the FMLA, as well as state laws. In June 2017, A Better Balance filed a lawsuit based similar allegations with a different plaintiff. A second EEOC complaint was filed a less than two months later.

The legal proceedings are based on a report published by A Better Balance in June. The report covered surveyed of over 1,000 Walmart workers (identified through social media). It compiled stories about Walmart’s “absence control program”. Among the results, A Better Balance reported that 78% of workers who were absent because of a medical emergency were punished for it. 85% of Walmart employees saw this discipline as a problem. A Better Balance alleges it was also against federal and state laws.

Walmart’s Absence Control Program Raises Concerns

Walmart uses a discipline system where employees receive points for violations of company policy. This can include anything from poor performance to disrespecting supervisors. It also applies to absences. Each unauthorized absence is one point. Arriving over 10 minutes late for a shift is half a point. If an employee fails to notify the company at least one hour before the missed shift, the no-call/no-show is four points.

Walmart workers can lose their jobs if they accumulate enough points. During the first six-month period, an employee can be terminated when he or she receives four points – one no-call/no-show. Even long-time employees can be terminated for receiving 9 points in a six-month period. Having any points on their records can keep employees from being assigned additional hours or receiving raises or promotions.

Official company policy says an employee can have an absence excused by notifying management three weeks in advance and receiving approval. However, most managers across the country refused to receive or review doctors’ notes from employees.

FMLA And Unexcused Medical Absences

The legal complaints center around the way the “absence control program” prevented sick and disabled workers from using the federal Family Medical Leave Act to protect their jobs. This law allows workers at companies with at least 50 employees, who have worked at least 1,250 hours in the last 12 months to receive up to 12 weeks of unpaid medical leave and come back to the same job. To qualify for FMLA, a worker must have a medical condition which:

  • Requires overnight hospitalization
  • Incapacitates the employee (or a family member) for more than 3 days in a row and require ongoing medical care
  • Are chronic, cause occasional periods where the employee (or family member) is unable to work, and requires ongoing health care
  • Includes pregnancy, child birth, or adoption of a new child

FMLA applies to the employee or anyone in his or her close family (spouses, parents, or children). To use it, workers must notify their employers in advance, or as soon as they are able after an emergency. The complaints say that Walmart’s policies prevented its workers from using the FMLA by labelling qualifying events as unexcused absences and assessing points.

ADA Scheduling Accommodations

A Better Balance also alleges that Walmart’s policy of not considering medical notes violated the Americans With Disabilities Act. This federal law prevents discrimination against workers with disabilities and requires employers to provide reasonable accommodations for documented medical needs. This can include adjusted schedules and time off work to attend treatments. Employees don’t need to know they are requesting accommodations. It is up to the employer to start an interactive process when it is notified the employee is having difficulty at work because of a medical condition. A Better Balance said that Walmart actively avoided this process by having managers ignore the medical reasoning behind employee absences.

State Laws Protect Pregnancy and Paid Sick Leave

The Walmart complaints also show how state laws can provide additional protections beyond federal law. 25 states explicitly require accommodations for pregnant employees such as time off for morning sickness and prenatal appointments. Several states also require companies to allow employees to develop paid time off. Walmart’s policies are alleged to have ignored these state laws as well.

Protecting Workers’ Rights Under Federal and State Law

Employees of large companies like Walmart can feel like they are fighting a giant when they assert their rights under the FMLA and the ADA. The skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can help you identify problems in your company policy, negotiate on your behalf, and file complaints with the appropriate state and federal agencies, and in court when negotiations fail. Contact us today to schedule a free initial consultation and get your case started.

What is Workplace Intimidation?

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Workplace intimidation can make your office a toxic place to be. When your boss or coworker is subjecting you to workplace bullying, you can feel you have no choice but to quit. Find out what workplace intimidation is, and how you can stop it.

In this blog post, I will explain what workplace intimidation is and provide examples of bullying conduct. I will explain what forms of intimidation are illegal, and explain what you can do to stop it.

What Workplace Intimidation Looks Like

Workplace intimidation, which is also called workplace bullying, happens when a superior, coworker, or direct report uses physical violence or threats, blackmail, or verbal abuse to manipulate a company employee for some professional advantage. It usually occurs over time, developing a pattern of mistreatment that can negatively affect an employee’s mood, productivity, and even mental and physical health.

No two workplace intimidation situations are exactly the same. What bullying looks like will depend on the nature of your business and what your workplace typically looks and sounds like. Some common examples of workplace intimidation include:

  • Physical violence or threats
  • Yelling or screaming
  • Hostile physical posturing
  • Ridiculing or insulting you in front of coworkers or customers
  • Intentionally assigning tasks outside your expertise
  • Finding fault with your work or assigning errors to you that are not your responsibility
  • Taking credit for your work
  • Sabotaging your work or setting you up to fail
  • Raising the bar for success or setting up different standards for the targeted employee
  • Interfering with your ability to work

Is Workplace Intimidation Illegal?

Not all forms of workplace intimidation are illegal. Whether bullying behavior violates state or local laws depends on what is done, and in some cases, the motives behind the bully’s actions. However, there are some circumstances when intimidation crosses the line into illegal, even criminal behavior.

Criminal Assault

Physical assault is a crime. Depending on the specific language of your state’s criminal code, a workplace bully can be prosecuted for hitting, kicking, tripping, poking, or otherwise injuring you. Some states also allow for criminal assault charges based on offensive touching (physical contact which a reasonable person would object to), or verbal assault which causes substantial emotional injury. Threats of assaults can also sometimes result in criminal prosecution. If you have experienced physical assault or threats, most jurisdictions require you to speak directly to the police to file a complaint. A private attorney may also be able to assist you in filing civil assault charges.

Sexual Harassment

When physical or verbal conduct is based on a person’s sex or gender, it can violate federal and state laws against sexual harassment. Minor, one-time occurrences may not be enough to create a cause of action. However, the more frequent or more severe the behavior, the more likely you will be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. An employment discrimination attorney can help you determine if you have a claim and what you need to do to preserve it.

Illegal Workplace Discrimination

When workplace bullying is based on a protected trait of the targeted employee, it can easily cross the line into illegal workplace discrimination. This applies to conduct based on:

  • Race
  • Color
  • National origin
  • Sex or gender
  • Pregnancy
  • Religion
  • Disability
  • Age

If an employer makes employment decisions (including job assignments) or allows its employees to create a hostile work environment based on one of these criteria, you may be able to file a complaint at the EEOC or in federal court. The rules about how workplace discrimination is reported depends on your employer’s policies, whether you are part of a union, and what protected trait is involved. Speak to an employment discrimination attorney to discuss your options and file the proper claims.

What to Do If Workplace Bullying Isn’t Illegal

If your situation does not violate any of the criminal or EEOC laws, you may still be able to put a stop to workplace intimidation. The Department of Labor encourages employers to establish clear anti-bullying policies that protect employees’ physical and mental health. The bigger your company, the more likely it is that there are steps you can take internally to report the abuse.

If your employer doesn’t live up to its promises or comply with its anti-harassment policies, you may be able to sue in state or federal court based on a breach of contract claim. This argument says that your employer promised to protect you from workplace intimidation and failed to do so. This kind of claim depends on the specific language of your employee handbook or company policy. Meet with a workplace harassment attorney to see if that language applies to you and your situation.

If your company does not have a formal anti-bullying policy, an employment lawyer may still be able to help. Informal negotiations on your behalf can sometimes remove the bully, reassign the targeted employee, or even help everyone in the office by creating new workplace rules of conduct.

You don’t have to put up with workplace intimidation. Whether the conduct against you is criminal, against federal or state discrimination laws, or simply wrong, an employment attorney may be able to help. At Eisenberg & Baum, LLP, our workplace harassment attorneys can meet with you to discuss your circumstances, and your options. Contact us today to schedule a meeting and fight back against the bully.