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Court reinstates age bias, retaliation charges by retail worker

age bias

In a ruling critical of the lower court’s decision, a federal appeals court has reinstated age discrimination and retaliation charges filed by a former retail sales associate who was allegedly told she was too old and denied training provided to younger workers.

Blair Davis-Garett worked for Anthropologie Inc., a unit of Philadelphia-based Urban Outfitters Inc., between September 2012 and early October 2013, first as a part-time sales associate in an East Garden City, New York, store, according to Monday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Blair Davis-Garett v. Urban Outfitters Inc., Anthropologie Inc.

Ms. Garett was 54 when she started, and significantly older than most of the other sales associates.

Younger sales associates were given training by being rotated hourly through the various sections of the store to gain a range of experience, but Ms. Garett, despite her repeated requests, was assigned to spend most of her time in the fitting room, according to the ruling.

In early 2013, when her store was closed, Ms. Garett was transferred to a store in White Plains, New York, which was more than 30 miles away, although others were reassigned to nearby stores.

She was later told she was transferred to that store “because of the demographics in White Plains, that the shoppers there were old, and she was old.”

In the White Plains store, she was again assigned to the fitting room for most of her shifts and received no training. She was also assigned the least desirable duties such as throwing out unsanitary trash or waste, according to the ruling. In addition, she was ostracized by her co-workers, who repeatedly called her “Mom” or “mommy.”

When Ms. Garett applied for an opening as apparel supervisor, she was told she was too old for the job. She received the promotion after she complained on the company’s hotline but remained consigned to the fitting room.

She was also given the “very difficult and exhausting task” of opening the store on 10 consecutive days, then closing it on 10 consecutive nights. In addition, management group meetings were scheduled in her absence, and she was denied training opportunities.

In early August, she learned of an apparel supervisor position at an Anthropologie store in Edgewater, New Jersey, which would have been a convenient commute for her. But instead of being transferred there, she was transferred to a Greenwich, Connecticut, store, a location for which she had never applied.

She said she was fired after she called the police when a suspicious man entered the store, with the explanation she had violated the company’s corporate policy. 

Ms. Garett filed suit in U.S. District Court in New York, charging retaliation and hostile-work environment discrimination in violation of the Age Discrimination in Employment Act of 1967 and state laws.

The U.S. District Court granted summary judgment in the defendants’ favor, ruling she had failed to produce evidence of age-related abuse sufficient to support her discrimination clams, and an adverse employment actions sufficient to support her retaliation claims.

Ms. Garett appealed, with the U.S. Equal Employment Opportunity Commission filing a brief in her support.

A three-judge appeals court panel unanimously overturned the lower court’s ruling and reinstated her charges. The district court “in considering Anthropologie’s motion for summary judgment, was required to accept all sworn statements by Garett as to matters on which she was competent to testify, including what she did, what she observed, and what she was told by company managers; and it was required to draw in her favor all inferences that could reasonably be drawn from that evidence,” said the ruling.

“It was required to disregard the contrary statements from Anthropologie managers that a jury would not be required to believe. Several aspects of the court’s discussion, however, reveal either a piecemeal assessment of items in the record or a rejection of Garett’s sworn statements.

“Viewing as a whole, rather than piecemeal, Garett’s testimony as to her treatment and the statements made to her by Anthropologie managers, the jury could find that Garett - castigated, denied training given to younger employees, and excluded from management meetings was subjected to age-related discrimination, criticism, and ostracism nearly every day.

“Similarly, with respect to the retaliation claim, the district court appears not to have considered the record as a whole and plaintiff did not describe it in the light most favorable to Garett,” said the ruling, in reinstating the charges and remanding the case for further proceedings.

Ms. Garett’s attorney, Brian A. Heller, a partner with Schwartz Perry & Heller LLP in New York, said in a statement, “Like so many older Americans in the workforce, Blair was marginalized and excluded because of her age. 

“Rather than being evaluated based on her ability and experience, she was judged based solely on the fact that she was in her mid-50s. In its decision on the summary judgment motion, the lower court set the bar so high that an age discrimination plaintiff would never be able to get to a jury.

“We are pleased that the 2nd Circuit reaffirmed that a jury should be the one to decide these cases, especially where the age discrimination was so blatant. Age discrimination is the next #MeToo movement and this vulnerable population needs and deserves the protection of the law.”

Anthropologie’s attorney did not immediately respond to a request for comment.

In January, a divided U.S. appeals court dealt a setback to older job applicants, saying they cannot invoke a federal law against age bias in employment to challenge hiring policies they believe have a discriminatory impact.




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