Posted on December 1, 2009 by Beverley Rogers

Congress Examines Age Bias (court cases, that is)

The Supreme Court has not been historically sympathetic to age discrimination cases. A recent New York Times editorial post stated that Congress is considering overturning a court ruling about age discrimination (Gross v. FBI Financial Services, Inc.) The ruling said that older workers must show that age was the decisive factor in their firing — not merely a contributing factor.

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), but the courts have made age discrimination suits very difficult. According to the Times piece, in 1993, in one of its most damaging rulings, the Court decided that if employers fire workers whose pension costs or salaries are high, they are not discriminating — even if the overwhelming number of people fired are older workers.

In our practice, we often see age discrimination that is subtle, with other factors involved. In those cases, we help negotiate a severance package and advise the client to move on.

What’s surprising is that there are still instances where it’s blatant and systemic (as pointed out by the Times article). Clients with the emotional -- and financial --resources may then choose to take a stand. But the burden of proof is on the plaintiff. The Supreme Court’s ruling in Gross v. FBI Financial Services (the case that Congress is thinking about reversing) said when there are mixed motives, the plaintiff has to prove age was the “but for” reason. This doesn’t work in terms of fairness and is inconsistent with the way other forms of discrimination are treated.

Interestingly, one blog reporting on this case rightly points out that the Supreme Court opinion states that Congress neglected to provide for a “mixed motive” analysis in age discrimination cases. On one level, as citizens, we might find it annoying that Congress and the Supreme Court are engaged in finger-pointing on an important issue. On another level, it shows that if Congress does act to reverse the rule in this case, it is not necessarily repudiating the Supreme Court but accepting the message that the law requires correction.

 

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Posted on December 19, 2008 by Angelo Tartaro

Employment Discrimination Verdicts Up; Look to Settle Anyway

AbaJournal.com reported recently that the median employment discrimination verdict rose 70 percent in 2007 to $252,000 from $147,000 in 2006. The post also reports that employers won only 38 percent of the cases that went to the jury.   

The post was by Jill Schachner Chanen was based on a report by Jury Verdict Research (“Employing the Law.”)

Although these numbers are interesting and somewhat useful, neither employers nor employees should depend too much on them. Many jury verdicts are reduced at some point after trial - - either by settlement to avoid a costly, time-consuming appeal or by the Court for various legal reasons. And, the amount of the verdict gives no indication of what the client actually recovered after costs.

Sometimes clients, hurt and embittered by the controversy, are confused when they are counseled to settle a case. Having hired attorneys to litigate, they wonder why don’t we want to litigate to the end? Lawyers are probably well-aware of the issues but for our non-lawyer readers: there are a number good reasons but one very good one is to exert a degree of control and achieve a degree of certainty as to what will be recovered by the client (when plaintiff) or what the litigation will cost (when defendant).

Some cases will inevitably have to go to trial but for most, despite the apparent uptick in the size of verdicts, it’s still far better to look to settle the case.

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Posted on November 10, 2008 by Angelo Tartaro

Avoiding Litigation and Making it Through a Deteriorating Economy

A short post in the New Jersey Employment Law Blog succinctly makes the point that while a deteriorating economy means belt-tightening, layoffs and severance agreements, obtaining advice before taking action is the one way to avoid making a difficult situation even worse.

I’d like to elaborate on that point and comment on a related but different aspect of the economy. There is no doubt that survival is the overriding business objective when the economy deteriorates. The real question though is whether the actions being taken to “survive” might actually accelerate the demise of the business. 

 

The business will not only survive but may actually come out stronger if (1) costly and demoralizing litigation and controversies are avoided while (2) building habits that establish a more professional, effective style of management towards workers and the business in general. 

 

On a different aspect of the deteriorating economy: there has not been sufficient time for all the government-generated liquidity and rescue funds to make any kind of impact. Without being over-optimistic, there is a good chance better times may be coming sooner than widely expected. Our businesses and professional practices need to exercise patience, professionalism and perseverance to position themselves for better times ahead.

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