Articles Posted in Discrimination – Age

For 32 years, Mr. Santillan worked for USA Waste of California, Inc. becoming perhaps the world’s most beloved garbage truck driver. The customers whose homes he serviced came out in droves to commend his work and he worked for 30 years receiving hardly any discipline. However, that changed when Mr. Santillan was assigned a new supervisor. After the new supervisor took over, suddenly, Mr. Santillan couldn’t do anything right and he was disciplined six times in a year and half. Nearly three years after the new supervisor took over, Mr. Santillan was fired. His employer claimed that their reason for firing him was because he had too many accidents in a year – which Mr. Santillan disputed. Then, USA Waste replaced Mr. Santillan with a driver who had much less experience and was thirteen years younger than Mr. Santillan. Mr. Santillan’s customers were outraged and came out in droves to demand that Mr. Santillan be reinstated. One family even described that their son dressed up as Mr. Santillan for Halloween because he considered Mr. Santillan “a hero.”

Mr. Santillan filed a grievance which ultimately settled. The terms of the settlement provided that Mr. Santillan would withdraw his grievance and in exchange, he would be reinstated provided that she could pass a drug test, a physical exam, a criminal background check and “e-Verify.” E-Verify is a controversial voluntary system under federal law used to check the work authorization status of employees through federal records. Mr. Santillan passed the drug test, the physical exam and the criminal background checks. He was told to report to work with documentation showing his right to work in the United States. Mr. Santillan returned to work with his driver’s license and social security card. Nonetheless, USA Waste insisted it needed a work authorization number and the expiration date. Mr. Santillan provided his identification number, but according to his employer, could not provide the expiration date. USA Waste terminated Mr. Santillan for a second time.

Mr. Santillan filed a lawsuit based on several claims including age discrimination and wrongful termination in violation of public policy. The trial court dismissed his case holding that Mr. Santillan could not state a prima facie case for discrimination and dismissed his wrongful termination claim holding that Mr. Santillan’s failure to provide the work authorization information that USA Waste demanded within three days was a legitimate non-retaliatory reason for the termination. Mr. Santillan appealed to the Ninth Circuit.

Applicants for employment who are over forty years old often face numerous hurdles to finding new employment. In addition to facing stereotypes about their longevity and energy levels, applicants may find themselves searching for a job in a market that has completely changed since the last time they looked for a new job. Recently, the U.S. Court of Appeal for the Eleventh Circuit created yet another obstacle for older job applicants, holding that older job applicants cannot bring a discrimination suit for failure to hire based on a theory of disparate impact under the federal age discrimination law. Villareal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. No. 15-10602 (11th Cir. Oct. 5, 2016)  Disparate impact cases challenge practices, rules or policies that result in a disproportionate negative impact on a protect group- here, employees over 40.

The court ruled that only employees, not applicants could bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). The court rejected a class action lawsuit against the company that had a hiring policy targeting applicants who were “2-3 years out of college”, “adjusts easily to changes.” In screening applicants, the policy was to “stay away from” applicants who had been “in sales for 8-10 years.” While this decision was a hard blow to applicants in the Eleventh Circuit, it does not apply once and employee is hired and becomes an employee.

Fortunately, this bad decision does not affect California employees. The Ninth Circuit, which covers California, and California state courts have a much more employee (and applicant)-friendly approach. In California, applicants may still bring an ADEA claim by alleging that a hiring practice disparately affects a protected class. In fact, there is a similar class action case for age discrimination in hiring currently pending in the Northern District Court of California. So far, two attempts by Google to defeat class certification for those claims have not been successful. Robert Heath, et al. v. Google Inc., Case No. 5:15-cv-01824.

Statistical evidence, layoffs, and age discrimination cases can be tough. Take the situation facing Schechner and Lobertini in their case against KPIX-TV. Both were television news reporters who were laid off in an across the board budget reduction. They brought a lawsuit in federal district court against KPIX-TV, alleging that they were laid off based on their age and gender.

Schechner and Lobertini put forward substantial statistical evidence that they hoped would convince a jury that their selection for layoff was discriminatory. Their lawyers hired a statistician who determined that there was a statistically significant correlation between the age of the employees and their selection for lay off.

Both the district court and the court of appeals found that the employees had not met their burden of proof and dismissed the case on summary judgment. Schechner v. KPIX-TV, 686 F.3d 1018 (Ninth Cir., May 29, 2012). Although the Ninth Circuit clarified that statistical evidence can be used to meet an employee’s prima facie burden of proof in a discrimination case and that the burden of proof is “minimal,” it still ruled against the employees in this case. The Ninth Circuit noted that the same managers who made the decision to lay off Schechner and Lobertini also made the decision to renew their employment contracts shortly beforehand and thus the TV station was entitled to the “same-actor infererence.”

Nielsen Media Research convinced the district court to grant summary judgment in this age discrimination case, and the district court held that plaintiff, Ms. Earl, failed to prove that Nielsen’s actions were a pretext for discrimination. Earl v. Nielsen Media Research, Inc., — F.3d —-, 2011 WL 4436250 (9th Cir. Sept. 26, 2011). Nielsen measures television program audiences. Ms. Earl was a recruiter, whose job was to recruit certain households to permit Nielsen to install television monitoring devices on their premises. Nielsen fired Ms. Earl, age 59, claiming that after a dozen years of work, she violated company policy by failing to verify the home address of a recruit. Ms. Earl had also previously violated policies, which had resulted in her placement on a Development Improvement Plan (DIP), but nonetheless, she received a good performance review and was never placed on the more serious Performance Improvement Plan (PIP).

Earl appealed the granting of summary judgment and claimed that circumstantial evidenced established that her firing was a pretext for age discrimination. The Ninth Circuit agreed, primarily relying on the fact that similarly situated younger employees were treated more leniently. In doing so, the Ninth Circuit provided a more practical and plaintiff-friendly definition of “similarly situated employees” (including what constitutes similarly situated conduct), making it more difficult for defendants to slice and dice the conduct in question and claim that the comparative younger employees were not really similarly situated.

The Earl v. Nielsen case rejected the notion that to be similarly situated the (younger) employees in question have to violate the exact same policy or commits the exact same transgression. Looking at factors such as whether the policy serves the same purpose and is of comparable seriousness, the Court counseled for the use of a “common sense” approach. Here the younger comparators signed up houses that did not meet Nielsen’s criteria, whereas Earl’s recruits met the criteria but she recorded an incorrect address. The Court found that these were comparators as they were similarly situated and/or committed similar transgressions. The court rejected the notion that the conduct of the comparators must be identical.

The concept of the “stray remarks doctrine” has really never made any sense whatsoever. It is a judicially created doctrine that has historically been used to attempt to circumvent and discount discriminatory statements made by an employer or an employer’s employees or agents. Courts – especially federal courts – have held that the “stray remarks doctrine” establishes that statements made by non-decision-makers or by decision-makers outside of the decision making process cannot be used to establish discriminatory intent. This is absurd when you think about it. Taken to the extreme – which courts have done – this means that discriminatory comments are simply antiseptically removed from the record. This is exactly what the trial court did in the age discrimination case of Reid v. Google, 50 Cal. 4th 512 (Aug. 5, 2010).

In upholding the Court of Appeals’ reversal of the trial court, the California Supreme Court reminded the lower courts that they not use the “stray remarks doctrine” to bar otherwise probative evidence of discrimination, and that the courts should remember that the jury is the trier of fact, not the judge.

This commonsense approach should help to restore an even-keeled and balanced approach to the determination of whether a decision made by an employer was discriminatory or not. As stated by the California Supreme Court, cases in California have considered discriminatory remarks “in totality with the other circumstances of the case.” Further, as is obvious, cases have noted that, “An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.” Lastly, the Court thankfully permitted the introduction of statements made in the work place that the jury should be permitted to hear in this case, including comments that Mr. Reid was “obsolete…too old to matter…slow…fuzzy…sluggish…lethargic….and that he did not display a sense of urgency.” Thank goodness, the California Supreme Court decided that ageist statement can be considered in an age discrimination case!