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Age bias charges surge as firms shed workers

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When Mona R. Saunders, 54, was fired last year from her 18-year job at law firm Crowell & Moring L.L.P. in Washington, she did not go quietly.

In a lawsuit seeking $300,000 filed in July in District of Columbia Superior Court, the former researcher accused the law firm of age discrimination and retaliation for a previous age discrimination claim filed with the U.S. Equal Employment Opportunity Commission.

In the suit, Ms. Saunders argues she was promoted three times and never had performance issues until a new supervisor was hired in 2005, and the only reason the supervisor cited in firing Ms. Saunders in July 2008 was that she was not a “good fit” for the firm.

She filed a March 2006 complaint with the EEOC, alleging the supervisor “constantly” criticized her work and suggested her age made her unable to learn new tasks, according to court records.

A spokeswoman for the law firm had no comment on the suit.

As layoffs have abounded during the recession, observers say employers should brace themselves for more age discrimination lawsuits.

This will be exacerbated by the large percentage of 50 and older baby boomers in the population, and what observers say is many older workers' attitude that they have little to lose by filing a claim.

Employees 40 and older are protected by the Age Discrimination in Employment Act of 1967 and by the Older Workers Benefit Protection Act of 1990. ADEA protects job applicants and employees older than 40 from age discrimination; the OWBPA amended the ADEA to specifically prohibit employers from denying benefits to older employees.

Last week, the EEOC filed an age discrimination suit in federal district court in New York against Dallas-based AT&T Inc. and affiliated companies, charging that a policy introduced in 2006 against rehiring employees who had retired from AT&T under various retirement and severance programs has had an adverse impact on older individuals. AT&T issued a statement that said while it could not comment specifically on the suit, it does not tolerate discrimination of any sort.

Meanwhile, a June U.S. Supreme Court decision in Jack Gross vs. FBL Financial Services Inc. (BI, June 26) may make it easier for employers to defend age discrimination claims should they ultimately reach trial, although Congress is expected to seek to overturn the decision with legislation (see related story).

According to the EEOC, the number of age discrimination charges filed by employees in fiscal year 2008 increased 28.7%, to 24,582, from fiscal 2007. They accounted for 25.8% of all charges filed with the EEOC in fiscal 2008, behind race, sex and retaliation claims. The fiscal year runs from Oct. 1 to Sept. 30.

Observers, who note charges must be filed with the EEOC before plaintiffs can file suit, said they expect the number of age discrimination suits to increase more this year.

“You sort of have the perfect storm of things going on here,” said Philip K. Miles III, an associate with law firm McQuaide Blasko in State College, Pa. “You have, first of all, an aging workforce” combined with “the huge economic downturn that we've been experiencing for the last couple of years.”

Layoffs “usually result in more age claims than anything else,” as firms seek to cut higher-salaried workers, which “often equates to seniority, which then equates to age,” said Gregg M. Lemley, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis.

Furthermore, he said, the economy's hit on employees' stock portfolios means people who might have retired voluntarily are working longer and being laid off instead.

To some extent, it's “just because there's more people in their 50s and 60s and even into their 70s who are staying in the workforce, so we have that baby boomer generation reaching retirement,” said Dennis Westlind, an attorney with law firm Stoel Rives L.L.P. in Portland, Ore.

Common sense helps deal with this issue, said Richard D. Tuschman, an attorney with Epstein Becker & Green P.C. in Miami. He said he has seen lawsuits in which plaintiffs allege comments such as, “You're too old for this job.” Employees should be trained “that such discriminatory attitudes won't be tolerated in the workplace,” he said.

Employers “need to make sure that their policies and procedures are applied consistently, and especially that performance issues are well-documented,” Mr. Westlind said. “Where employers may get into trouble is where they are reluctant to go to an employee and address those performance issues,” the issue is not well-documented and the employee is terminated later, he said.

Younger managers in particular often have difficulty interacting with older employees and “might feel intimidated and somewhat reluctant to face the performance issues,” he said.

Randi W. Kochman, an attorney with Cole, Schotz, Meisel, Forman & Leonard, P.A. in Hackensack, N.J., said employers should “make sure they have an identifiable basis for the termination, an objective reason,” particularly with group terminations.

If a termination is for performance reasons, “you want to be as close to using objective criteria as you can,” Ms. Kochman said.

Mr. Tuschman said when he works with employers planning layoffs, “we look at the numbers.” If layoffs reflect a disproportionate number of older workers, “we go back and ask the employer to take a second look at how the decision-making is being done.”

John P. Barry, a partner with Proskauer Rose L.L.P. in Newark, N.J., said those handling terminations should be trained so employees do not automatically assume they lost their job because of their protected status, including age.

Severance packages help, say observers.

Mr. Lemley said employers are “smarter and more savvy” than the last economic downturn in the early 1990s and more frequently offer separation packages in which employees may choose to waive discrimination claims in exchange for severance.

The EEOC in July released guidance on this issue, which is available at www.eeoc.gov/policy/docs/ qanda_severance-agreements.html.