Page 35 - May2019_BarJournal

LABOR & EMPLOYMENT

suffered an adverse employment action, and employees, either involuntarily or after allotted), but keep in mind that the shortest
4) was replaced by someone substantially pressure to leave; and statute of limitations may be as little as 180 days
younger, or, in a case involving discipline, • Vague, disingenuous, or previously from the date that the employee was notified of
was treated more harshly than a younger unmentioned performance concerns are the adverse employment action.
counterpart. The burden of production the stated basis for separation. As our workforce ages, we can expect an
then shifts to the employer to articulate a While not every case has these common increased incidence of age discrimination. After
legitimate non-discriminatory basis for the features, most have at least some. As lawyers, 50 years, the ADEA’s goal of ensuring equality
decision. A plaintiff then has the burden we all know people who are terminated from and fairness for older workers has not been
to show that the articulated reason is a their job and are frequently asked our opinion entirely fulfilled. Age discrimination persists,
“pretext” for a discriminatory motive. This (regardless of our practice area) as to whether and it is important to be able to recognize these
can be done in a number of ways, and is there is any legal recourse. If a number of claims when they present.
highly dependent on the particular facts, these factors prevail, a full assessment as to
but typically involves proving that the reason whether age discrimination may be at play
given is false, insufficient to motivate the is warranted. Ann-Marie Ahern is a Certified
adverse employment action or that age was the Often a person who has been impacted Specialist in Labor and Employment
more likely reason. Once the plaintiff shows by such an employment decision will have a Law and is a Principal, Board
pretext, a jury or trier of fact is then permitted separation agreement that offers a severance Member and Head of the
(but not required) to conclude that the real payment and continuation of healthcare benefits Employment Law Practice at
reason was a discriminatory one. Of course, in exchange for a release of all claims, including McCarthy, Lebit, Crystal & Liffman, Co. LPA. She
a plaintiff may also prove age discrimination age discrimination claims. If an ADEA release is has represented primarily employees in employment
by presenting direct evidence of age bias, part of the agreement, the law requires that the disputes for more than 20 years. Ann-Marie has
but it is unusual for the employer to directly employee be given at least 21 days, and in some been a member of the CMBA since 1999 and is a
articulate a discriminatory motive. cases, 45 days to consider the proposal. Often former Member of the Board of Trustees of the
The framework for proving discrimination, times, a victim of age discrimination who may CMBA and the CMBF. She can be reached at (216)
in application, is much more nuanced and not have an appetite for litigation can negotiate 696-1422, or at ama@mccarthylebit.com. Follow
is riddled with exceptions and variations. a far better severance package than the package her on Twitter at @workplaceatty.
Practically speaking, however, age that is originally offered. Many employers expect
discrimination in employment has a typical that employees will ask for more and build that
pathology. Typically, age discrimination into their initial offer.
presents as follows: If, however, a victim of age discrimination Niki Z. Schwartz
• Long term employee; hopes to get an outcome that reflects their
• Most often, around age 55 or older (even actual damages — lost salary, incentive Mediator/Arbitrator
though protected age category technically compensation, and benefits — litigation
begins at 40); is most often necessary. More so than any
• Previously rated as meeting or exceeding other category of victims of discrimination,
expectations; age discrimination victims tend to have the
• Valued for many years for knowledge and most severe damages. And again, this is in
contributions; large part because of the pervasiveness of age
• Sudden shift in perception of value or discrimination in our society. Job seeking over
effectiveness of employee’s work; the age of 50 is very difficult. In fact, even in
• Often coinciding with a change in a record low unemployment environment,
management or leadership; according to the AARP Public Policy Institute,
• New emphasis within company on 33% of job seekers age 55 and older fall into
succession planning or hiring younger, the category of “long term unemployed.” And
fresh employees; those who are able to find re-employment
• Unreasonable scrutiny or wholly subjective frequently remain underemployed, and often at “If he can settle
criticism of employee’s work; a rate of compensation that is not comparable a prison riot,
• Feelings of being marginalized or ostracized; to what they previously earned. Unlike a victim
• Inquiries about retirement intentions; of another type of illegal discrimination, a he can settle
• Older employee is singled out for discipline victim of age discrimination may never bridge
for conduct that goes unpunished in the earnings loss gap. anything!”
younger colleagues; Be aware also that there is an extremely
• Suspicious reorganization or reduction in complicated series of statutes of limitations
force that appears to be driven by a desire that apply to age discrimination cases as well as 216-696-7100
to remove certain employees rather than to administrative filing election of remedies issues
accomplish organizational needs; under federal and state law. A full explanation nzs.adr@gmail.com
• Successive departures of a number of older would be tortuous (and well in excess of space
May 2019 Cleveland Metropolitan Bar Journal | 35