Previously here on the Blawg, we discussed a massive class action age discrimination lawsuit filed by TV writers against various talent agencies, networks and production studios. In the latest news, lawyers for both sides announced a $70 million settlement with all but one of the defendants.

History

The lawsuits were filed in 2000 against several media giants including ABC, CBS, NBC, Fox, Columbia, DreamWorks, Universal and Warner Brothers, as well as several talent agencies including International Creative Management (ICM), Creative Artists Agency (CAA) and William Morris. The writers alleged that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failures to hire them.

ICM settled in 2008 for approximately $4.5 million plus an agreement to implement institutional changes to promote hiring of older writers. The lawsuit continued against the rest of the defendants.

Latest Settlement

The settlement calls for payment of $67.5 million to 165 TV writers. Another $2.5 million will be used to establish a fund to supplement the writers’ pensions and to provide grants and loans to help further their writing careers.

“The importance of the settlement cannot be overestimated, given the fact that television shows — even in this era of multiple entertainment platforms — remain crucial in shaping our culture,” said AARP Foundation attorneys. The AARP Foundation indicated that it would continue pursuing the case against the lone holdout from the settlement — talent agency CAA.

The settlement must be approved by a California state court before it becomes final.

The Lessons

As discussed previously here on the Blawg, age discrimination cases typically rank #1 in terms of verdict size. Those numbers will most likely continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy. The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees. Those cases usually don’t work out too well for employers.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact. Older employees can be a valuable resource and often have tremendous skills and experience. Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

According to the National Law Journal, the EEOC will soon release statistics showing that age claims declined in the past year — defying all conventional wisdom.

The EEOC says that age claims were down 7% last year. That’s pretty shocking, especially considering all the RIF activity nationwide and the EEOC’s announced intention to more aggressively enforce the law. The 7% drop is a stark contrast to the 30% increase the prior year.

“The facts are turning out different than people thought in terms of age discrimination charge numbers,” said EEOC Assistant Counsel Carol Misaskoff. “What is sort of anecdotally appearing to people is not what we’re seeing in the numbers.”

As discussed here previously on the Blawg, yesterday the EEOC held a public hearing to discuss recent age discrimination developments.

The EEOC scheduled the hearing due to “widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions.” Here are the highlights . . . 

New Technical Assistance

Of most interest to employers is a new technical assistance — Understanding Waivers of Age Discrimination Claims in Employee Severance Agreements – available on the EEOC’s web site here. It includes waiver FAQs, a checklist for employees to use when reviewing a waiver and a model agreement for employers.

The Comments

A variety of experts testified during the hearing, including EEOC representatives, a professor, a defense attorney and plaintiffs from age discrimination cases.

One former plaintiff, John Stannard, said he believed that he was selected for layoff due to “the false stereotype which characterizes older workers as less flexible and critical.” He described the difficulties of finding work after the layoff, saying that the only job he could find was as a janitor cleaning up after his former co-workers.

“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chair Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations.”

Click here for the EEOC’s summary of the hearing, which includes additional comments by the panelists.

What’s Next?

The EEOC pledged to consider the panelists’ comments and to offer additional regulations to address concerns regarding “ageist” comments in the workplace and burdens of proof in age cases. It also urged Congress to add more teeth to the Age Discrimination in Employment Act (ADEA).

Stay tuned.

The EEOC announced that it will hold a public hearing to discuss age discrimination on Wednesday, July 15 at 10:00 a.m. EDT at the agency’s headquarters in Washington, D.C.

The EEOC says the hearing is necessary due to “widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions.” Topics to be addressed will include:

• “the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards”;
• “the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA)”;
• perspectives from participants in recent ADEA cases; and
• technical assistance from the EEOC on employee rights when offered a severance package in exchange for a waiver of claims.

Additional information about the hearing will be made available by the EEOC here.

In a 5-4 decision today (Gross v. FBL Financial Services, Inc.), the U.S. Supreme Court tossed out the concept of a “mixed motive” age discrimination case under the ADEA. Plaintiffs must now prove that age was the “but-for” cause of the challenged adverse employment action.

Here’s the key language:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

What Does This Mean for Employers?

Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.

If you’re a legal junkie and want to read the court’s full decision, click here.

Several thousand TV writers inked a $4.5 million settlement with talent agency International Creative Management, Inc. (ICM), resolving the first of 23 pending age discrimination suits against various talent agencies, TV networks and studios.

The lawsuits were filed in 2000 and include cases pending in California state court against media giants ABC, CBS, NBC, Fox, Disney, Columbia, Warner Brothers and talent agencies ICM, Creative Artists, William Morris and others.  The writers allege that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failure to hire them.

In addition to the payment, ICM agreed to implement a variety of institutional changes, including working with an independent task force to scrutinize its policies and procedures and participating in a program that will seek to promote the top 25% of older writers based on script evaluations conducted by a panel of experts.

The plaintiffs’ law firm says it is in “serious settlement negotiations” with the remaining defendants.

The Lessons

As discussed previously here on the Blawg, age discrimination cases are #1 in terms of verdict size.  Those numbers will undoubtedly continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy.  The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees.  Those cases usually don’t work out too well for employers.  Click here for a real-life example.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact.  Older employees can be a valuable resource and often have tremendous skills and experience.  Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

An Ohio jury awarded more than $46 million to an employee who alleged that he was fired after refusing to terminate three older employees because he felt it would constitute age discrimination.

The jury awarded Ronald Luri $3.5 million in lost wages and a whopping $43.1 million in punitive damages.  Luri worked for waste collection company Republic Services.

According to published reports, jurors were “dismayed” by Republic’s alleged “evidence-tampering.”  The jurors said they felt the key piece of evidence was a memo written by Luri’s boss.  According to a computer expert retained by Luri’s lawyer, the boss post-dated the memo and added two paragraphs critical of Luri’s performance a full two weeks after Luri filed his lawsuit.  Jurors also reportedly were troubled by Republic’s alleged efforts to prevent Luri from finding work in the Cleveland area after it fired him.

Republic vigorously disputes the allegations and said it plans to appeal.

The Lessons

As we’ve pointed out repeatedly here on the Blawg, litigation can be a very expensive proposition.  Click here for our litigation tips, including early case evaluation and settlement procedures. 

Judges and juries can smell when an employer may not have been acting fairly.  If there is any evidence that you treated an employee unfairly and/or unlawfully, you need to strongly consider whether going to court is the best option.  Also, avoid any temptation to post-date documents or change evidence after the fact to make a case look more favorable.  Judges and juries hate that.

Click here for more on this case.  Special thanks to the Ohio Employment Law Blog.

It was a day chock-full of employment law for the Supreme Court, as it issued four decisions impacting employers.  Here are the highlights.

In MetLife v. Glenn, the Supremes ruled that the administrator of an ERISA plan has a conflict of interest if it performs the dual role of evaluating claims and paying them.  What does this mean for employers?  If your administrator performs both roles, there is now a much greater risk of having benefit determinations overturned.

In Meacham v. Knolls Atomic Power Laboratory, the Court ruled that it is the employer’s burden in an ADEA disparate impact suit to prove that the employment decision was made on “reasonable factors other than age” (RFOA).  Previously, it was unclear whether the employer or employee bore the RFOA burden of proof.  The Court also rejected a “business necessity” defense under the ADEA.  What does this mean for employers?  Employers now have a potentially greater uphill battle in disproving disparate impact age discrimination claims.

In Kentucky Retirement Systems v. EEOC, the Court ruled that a benefit plan’s use of age as a factor in distributing retirement benefits to disabled employees does not constitute a prima facie case of age discrimination.  What does this mean for employers?  Even with this ruling, employers should refrain from applying age as a factor arbitrarily or discriminatorily in pension decisions.

In Chamber of Commerce v. Brown, the Court ruled that federal labor law prohibits states from regulating an employer’s right to speak out about union organizing by its employees.  What does this mean for employers?  If you’re in a state (like California) that has such a law, it is now subject to challenge on federal preemption grounds.

Stay tuned for more.

(Source:  scotusblog.com)

The Supreme Court has given employers the OK to reduce health benefits for Medicare-eligible retirees.

Last year, the EEOC issued a rule creating an “exemption” to the Age Discrimination in Employment Act that allowed employers to “coordinate” retiree health benefits by reducing or eliminating plan coverage for employees who are eligible for Medicare or a state-sponsored benefit program.

AARP filed a lawsuit challenging the rule.  It lost at the lower court level and then appealed to the Supreme Court.

In a case of strange bedfellows, employer and union advocates banded together to back the EEOC’s rule and attack AARP’s suit.  Their reasoning?  The rule encourages employers to maintain health coverage for retirees rather than dropping it altogether.

The Supreme Court apparently agreed, issuing a one-sentence decision declining AARP’s appeal without comment.

“This is good news because it clears up the lingering doubts about the law,” said Rae Vann, General Counsel for the Equal Employment Advisory Council.  ”From a practical point of view, it is also good for retiree health benefits.  It means more employers will continue to provide these benefits.”

According to Bill Raabe, Director of Collective Bargaining for the National Education Association, ”The practical effect of any law that requires employers to provide identical benefits for pre- and post-Medicare-eligible retirees would be the erosion of post-retirement healthcare benefits for all.”

AARP said it was “deeply disappointed” by the ruling and that it “clears the way for employers to discriminate by reducing or terminating benefits for older retirees simply because they’ve turned 65 years old.”

A lawyer fired for sending anonymous love poems to a co-worker failed to prove that his termination violated the Age Discrimination in Employment Act.

The lawyer, David Bennett, was 63 at the time of his termination by Saint-Gobain Corp.  He alleged that his firing was a pretext for age discrimination and in retaliation for a previous age discrimination complaint he made against the company. 

Saint-Gobain said it fired Bennett for a legitimate non-discriminatory reason:  writing “sexually tinged” love poems to a female co-worker.  The court agreed with the company and dismissed Bennett’s claims.

The case is a dramatic illustration of one of our Employment Law Greatest Hits (see the Tools & Tips section of the Blawg):  Get all the Facts, Man.

In 2001, Bennett and other lawyers complained to HR that the company’s deputy general counsel was biased against older workers.  The company’s HR department took the matter seriously, interviewing witnesses and reviewing relevant documents, but concluded that the allegations were unfounded.

In 2002, a female co-worker of Bennett’s complained to HR that someone at work was sending her anonymous love poems.  She suspected Bennett because some of the spellings were “British.”  Bennett hails from the UK. 

Bennett denied writing the poems.  In fact, he took it a step further and denied that he had ever written a poem.

The company’s HR department again conducted a prompt and thorough investigation.  A handwriting expert concluded that it was “highly probable” that Bennett was the author of the notes.  A search of Bennett’s office turned up other poems written by Bennett, refuting his claim that he had never written poetry.

But the true ”Columbo” moment came when HR interviewed Bennett and asked him to spell the word “meager.”  When he spelled it ”meagre” — just as it had been written in the poems – they knew that they had their man.  As a final step, the company’s general counsel carefully reviewed all the evidence produced during the investigation before deciding to terminate Bennett.

The lesson?  Don’t wait — investigate.  Saint-Gobain’s prompt and thorough investigation enabled it to make a fact-based decision and to establish that it acted for a legitimate, non-discriminatory reason.

In other words, get the facts before you act.