A review of the New York Times today provides a stark demonstration of the arbitrary way that society assesses damage to individuals.
There is a front page story about a Florida jury verdict ordering Gawker.com to pay wrestler Hulk Hogan $115 million in damages for publishing a grainy security video depicting Hogan having sex with a friend’s partner. Of that amount, $55 million was for economic harm and $50 million was for emotional distress. (Hogan subsequently was awarded an additional $25 million in punitive damages.)
Another story, featured in the business section, chronicles the demoralizing travails of Julianne Taaffe, 60, and Kathryn Moon, 65, who taught English as a second language (ESL) at Ohio State University for decades until they were forced to retire as a result of an alleged campaign of illegal age discrimination and harassment.
The maximum damage award permitted under the Age Discrimination in Employment Act (ADEA) is a total of two-times the amount of monetary damage suffered by the plaintiffs. The ADEA does not permit plaintiffs to recover damages for emotional distress or punitive damages, though these damages are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. So if Taaffe and Moon’s case ever gets to a jury the most they could recover is whatever salary and benefits they lost, possibly doubled.
And while the evidence against OSU is what some would call overwhelming, it is far from certain that Taaffe and Moon’s lawsuit ever will reach a jury. Taaffe and Moon were forced to sue five Ohio State University (OSU) officials individually rather than the university because the U.S. Supreme Court in 2000 ruled that the concept of sovereign immunity prevents an award of monetary damages in federal lawsuits against state agencies (including universities). OSU has filed a motion to dismiss the lawsuit on the grounds that the ADEA does not permit plaintiffs to sue individual government employees.
Taaffe and Moon claim in the lawsuit that OSU systematically drove out older teachers in the university’s English as a Second Language Program.
The evidence includes an email in which then-executive director of ESL Programs, Russell Clark, referred to ESL program staff as “an extraordinarily change-averse population of people almost all of whom are over 50 … it’s like herding hippos.” Clark subsequently resigned and was replaced by Robert Eckhart, who allegedly referred to members of the ESL program variously as “an old lady who can’t walk,” “the Grim reaper,” “old wood” and “millstones around my neck.” Moreover, Elkhart changed Taaffe’s five-star teaching rating to four, without ever seeing her actually teach a class. And he allegedly denied promotional and training opportunities to older staff in favor of younger employees.
After ESL staff complained, OSU conducted an “investigation” that “adopted, at face value, every position taken by the OSU administrators who were named in the Plaintiffs’ complaints.” The only adverse finding in the report was that Eckhart “manifested poor judgment in making certain statements to staff members.”
A week later, Taaffe and Moon were notified that Ohio State was eliminating their positions but that they could apply for the rank of lecturer, a position with less pay, no benefits and no guarantee of renewal. OSU also took away their individual offices, consigning them to a group office with shared computers. They said they were forced to retire to protect their pension benefits.
In January 2015, OSU advertised to fill seven new full-time professional staff positions in ESL programs. Taaffe, Moon and the other older workers whose full-time positions had been eliminated applied, whereupon the positions were abruptly removed from the system without being filled.
Of course, its apples and oranges to compare Hulk Hogan’s invasion of privacy to the sense of betrayal and humiliation suffered by Taaffe and Moon. But it does say something about society’s values that Hogan will walk away with tens of millions of dollars while Taaffe and Moon will be lucky if their case survives a motion for summary judgment and makes it to a jury, which then would be severely limited in any damages award. Hogan’s career will continue while Taaffe and Moon have been unceremoniously stripped of their livelihoods. Overwhelming research shows that older women face epidemic age discrimination in hiring and there is little likelihood that they will ever find a job equivalent to that which they held at Ohio State.
Taaffe and Moon’s lawsuit was brought by the AARP Foundation Litigation Project.