Age stereotype precludes summary judgment

stereotypes-150x150The Eighth Circuit reversed the grant of summary judgment in Hilde v. City of Eveleth, February 5, 2105, finding that the employer’s assumption that a retirement-eligible applicant would retire if hired for a job was age discrimination on its face.

To assume that Hilde was uncommited to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. he prohibited stereotype—older employees are likely to be less committed to a job because they can retire at any time—figured in the City’s decision. Using retirement eligibility to presuppose lowered productivity or dedication would not represent an accurate judgment about the employee unless evidence other than age indicates that the employee would, in fact, retire.

The City provides no evidence that the commissioners doubted Hilde’s commitment to the job for any reason but for his age-based retirement eligiblity. They admit he had a great reputation in the force and they held his continued service in the highest regard. The City argues that Hilde should have convinced them that though retirement eligible, he would not retire. According to Commissioner England:

I would have appreciated something out of [Hilde], some indication that he wanted this job and was willing to commit for at least some period of time. By not telling us anything, now you’re thinking in your mind, what’s this guy thinking, what’s he doing. If he gets the Chief’s job, he’s just going to take it and that’s going to be a feather in his hat and he’s going to pull the trigger and retire? I would have liked some commitment out of the guy.

The commissioners apparently never asked about his commitment to the job or whether he was considering retirement.

Lesson for employers: Use employee-specific facts, not unfounded, category-based assumptions, in making employment decisions.

Eighth Circuit blows summary judgment appeal

b770847555_seriouslySometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court’s thinking.  The dismissal of Caryln Johnson’s age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions.

Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson’s dependability and called him Superman.

Hesse, however, had concerns about Johnson’s advancing age. On several occasions over a three year period Hesse told Johnson he “needed to hang up his Superman cape.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “‘needed to hang up his Superman cape and retire.'” Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.'” Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.”

So it was until January 25, 2009, when Johnson worked the 4 PM to 8 AM shift at the site of Rail Logistics, one of Securitas’s clients. At about 5:30 AM, Johnson accidentally damaged his patrol vehicle when it came into contact with a stationary semi-trailer. The semi-trailer was not damaged. Johnson’s vehicle was still driveable and Johnson was not hurt. Securitas policy required that accidents be reported as quickly as possible. However, Securitas did not provide cell phones or radios to its security officers, and Johnson did not have access to a telephone at the Rail Logistics site. Johnson tried unsuccessfully to call the office using his own cell phone, but there was no signal.

At about 7 AM, Johnson departed and began driving his vehicle back to the office. He reached Bunch by phone at 7:02 AM and reported the accident. Bunch went to the Rail Logistics site and began preparing an accident report. Bunch spoke with Hesse at this time, and Hesse said that Johnson’s shift went to 8 AM, not 7AM. Hesse told Bunch to contact Sherri Parker in human resources about Johnson’s unauthorized departure from the Rail Logistics site, which was listed in Johnson’s employee handbook as a potentially terminable offense. Hesse called Johnson and told him to expect a call from Parker. Once again, Hesse told Johnson that it was time to hang up his Superman cape and retire. Parker called a short time later, asked Johnson if he was born in 1932, and then fired him for two stated reasons, leaving his shift early and not immediately reporting the accident. Securitas had never before fired another employee for either reason.

The court faced only one question: could a reasonable group of people look at the facts and decide that it was more likely than not that Johnson’s age was a determinative factor in Securitas’s decision to terminate his employment? A nine judge majority comprised of George W. Bush appointees held that the answer was no. Three dissenting judges correctly held otherwise.

It’s difficult to overstate the audacity of the majority’s ruling. The majority literally decided that if a group of eight ordinary people sitting in a jury box took in all the evidence and felt that the scales tipped even slightly in Johnson’s favor, they would be acting outside the bounds of reason. The majority was wrong. A reasonable jury could have ruled in Johnson’s favor based solely on Hesse’s remark that Johnson was too old to be working. It could have decided that Hesse was itching to terminate Johnson because of his age and used the car accident at Rail Logistics as a pretext to do so. To be certain, a jury might also have found in favor of Securitas. But for the majority to hold that to be the only reasonable decision was a gross and impermissible substitution of its own judgment for that of the factfinder.

In addition to the majority’s abjectly incorrect holding, its repeated reference to “the but-for cause” as the standard of causation betrays its political motivation. Every court to consider the issue has held that but-for causation does not mean sole cause. There can be ten but-for causes of a termination and if one of them is age, the employer broke the law. One must also remark on the majority’s use of the phrase “with regards to” and encourage the author of the opinion and those who failed to correct this embarrassing error to revisit their high-school grammar books.

Older worker stereotypes deeply entrenched

Common stereotypes about older workers include unwarranted assumptions that older workers are tired, grumpy, more costly, harder to train, less adaptable, less motivated, less flexible, more resistant to change, and less energetic than younger employees. These stereotypes stem from depictions of older persons in society generally. Employers also may be reluctant to invest in training and other developmental opportunities for older workers based on the perception that they have less time remaining in their careers. While extensive research has shown that these negative age-based stereotypes have little basis in fact, they influence many employment decisions. For instance, as a result of these stereotypes, older persons with the same or similar qualifications typically receive lower ratings in interviews and performance appraisals than younger counterparts (and thus are apt to have more trouble finding or keeping a job or securing a promotion). Older workers also typically are rated as having less potential for development than younger workers, and thus are given fewer training and development opportunities. Age-based stereotypes disadvantage older workers in corporate downsizing situations in particular. Because the main goal of such downsizing is usually to cut costs, age-based stereotypes that older workers are more costly, harder to train, less flexible, or less competent may become much more prominent in the minds of the decision-makers. To make matters worse, once older workers are laid off, they often are again vulnerable to age-based stereotyping as they attempt to find new jobs. As we have previously written, older workers who have been laid off are less likely to obtain reemployment than younger workers, take longer to find new jobs than younger workers, and generally fail to obtain jobs paying the same wages as their previous positions.

 

When times are hard, older workers get hit the hardest

A recent report from the Government Accountability Office has found that once unemployed, it takes older job seekers significantly longer to find new work. Since the recession started, the median length of unemployment has more than tripled for older workers, increasing at a greater rate than that of younger workers. Prior to the recession, the median duration of unemployment for job seekers age 55 and over was 10 weeks compared with 9 weeks for job seekers aged 25-54. By 2011, the median duration of unemployment for older job seekers had increased to 35 weeks compared with 26 weeks for younger job seekers. In 2007, less than a quarter of unemployed older workers were unemployed for longer than 27 weeks. By 2011, this number had increased to 55 percent. Moreover, by 2011 over one-third of all unemployed older workers had been unemployed for over a year.

The GAO report cites several studies that explain why companies favor younger workers:  Younger workers typically earn less; employers expect younger workers will be healthier and have less of an impact on health care costs; employers expect older workers to “have an issue” working for a younger boss; employers believe older workers’ technical skills are out of date, and that they are likely to retire in the near term.

As they struggle with long-term unemployment, older Americans are doing what they can to get by. An AARP Public Policy Institute report released last month 69 percent of older Americans had slashed expenses; 57 percent of workers had tapped savings; 52 percent delayed medical or dental treatment; 37 percent stopped saving for retirement; 35 percent used credit cards to pay for daily living expenses; and 18 percent took distributions from their retirement accounts.