By Donna Ballman
It's still not decided everywhere in America, but in the 5th Circuit (Louisiana, Mississippi, Texas) you can now sue your employer for age-based harassment. That's right. Up until now, employers argued that you could be harassed at work due to your age and couldn't do anything about it. And in some states, employers are still trying to make this argument with a straight face. Just another wacky day in employment law.
Here's what the 5th Circuit did. In 2007 (yes, 4 years ago -- these cases take a long time), a 65-year old man very briefly worked for a car dealer. His lovely boss said stuff like this to him at least a half dozen times a day:
• "You old mother******, you are not going over there [his church] tomorrow."
• "Old mother******," "old man," and "pops."
• "Get your old f*****g ass over here. You are not going to work with new cars."
It got to the point where the supervisor refused to call him by name, and instead used these terms daily. Finally, in a meeting, the boss yelled, "I am going to beat the 'F' out of you," and "charged" toward him. At that point, he quit. Then he sued for, among other things, hostile environment and age discrimination.
Only one other court, the 6th Circuit (Kentucky, Tennessee, Michigan and Ohio) has expressly decided that such a claim exists under the Age Discrimination in Employment Act. Fortunately for us old folks, no court has decided the other way. That doesn't mean it couldn't happen somewhere, since I'm sure employers are continuing to make this argument in the other circuits.
The 5th Circuit also examined whether these comments were both "subjectively and objectively offensive." In other words, not only was he offended, but a reasonable person would be offended. Here, the court seemed to find the fact that the boss charged at him and said he was going to kick his a** to be the tipping point. That, and steering sales to younger employees was enough. The court then had to decide whether he was justified in resigning, and they said yes, at least he had enough evidence to take to a jury.
That doesn't mean you can sue just because your boss calls you old. The court mentioned another case where comments such as, "Granny, have you not got anything to do?"; "See that old woman and she will take care of you.";"Old woman, when are you going to retire and go home so someone younger can have a job?"; and, "Granny, when are you going to retire and let someone younger have a job?" weren't considered enough to be a hostile environment because they didn't happen often enough. She said her "supervisor harassed her for several years based on her age; refused to give her a promotion or reevaluate her job; and that he refused to upgrade her pay scale to reflect the work she was actually doing." She lost. Maybe granny had to get punched in the face first before she could win an age discrimination claim.
Hostile environment/harassment claims are tough to prove. The courts make you jump through lots of hoops first. Here's what you can do if you think you have a hostile workplace due to your age:
Report it: Unless it's an "adverse action" such as termination, demotion, denial of a promotion, or suspension without pay, you have to report it under the harassment policy as age-based harassment/hostile environment and give them a chance to correct the situation. In this case, the adverse action was the constructive termination -- he had enough for the court to determine he was justified in quitting. But you can see how much he had to go through to get the court to find constructive discharge. Mostly, you need to report it if it's harassment.
Keep records: Write down dates of comments and incidents, witnesses, as much information as you can. Keep your notes on you, in your purse/briefcase or at home, not in your desk or computer. If you're fired, they are likely to go missing.
Compare: Who is being treated differently under the same circumstances? If they're younger, write down names and incidents where they were treated better. If others around your age are also being treated badly, write it down.
Prove it: You'll have to prove several things once you get to court. First, obviously, that you're over 40. Plus you need to show that you're enough older than those you are comparing yourself to in order to persuade the judge that your age is a factor. Second, that you were harassed due to your age. Third, that the harassment created an objectively hostile environment (that a reasonable person would find that it was offensive).
The court describes the factors they will consider as "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee's work performance." Finally, you have to convince the court that the employer should be held responsible for it.
There are lots of ways these cases can go wrong, so talk to a lawyer in your state if you think you're the victim of age-based harassment. For now, at least in some states, harassing someone in the workplace due to their age is illegal. Should this even be a question? No, of course not. But it's still up in the air. Welcome to the wonderful world of employment law, where laws that everyone takes for granted don't exist.
Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues is Screw You Guys, I'm Going Home. To find out more about Donna, visit her on Red Room.