Hulk Hogan v. Two Alleged Age Discrimination Victims

March 19, 2016 by Leave a Comment

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. [Read more…]

Filed Under: AGE DISCRIMINATION, CULTURE, DISPATCHES Tagged With: , ,

Why do journalists have more ethics than U.S. Supreme Court Justices?

March 8, 2016 by Leave a Comment

When I beganUS Supreme Court my career as a newspaper  reporter in Connecticut, I was occasionally offered a junket or an opportunity to get something of value without earning it or paying for it.

Reputable news reporters  (as opposed to lifestyle and travel  reporters) didn’t accept junkets. To do so was widely considered to be unethical because it affected one’s objectivity or the appearance of one’s objectivity. We knew that a reader would not trust a reporter who, for example, accepted a free trip to the Bahamas from the mayor of the city that s/he was covering.

This is one reason that I find it so galling that members of the highest court in our land, the U.S. Supreme Court, have no compunction about accepting junkets. They do it all the time.

Justice Antonin Scalia died suddenly last month at  a Texas hunting lodge, where he was staying for free as a guest of a Texas businessman.

According to USA Today,  the nine justices took more than 1,000 reported trips paid for by outside sources from 2004 to 2014.  Scalia was  the most traveled, with more than 23 trips on average a year, followed by Justice Stephen Breyer, with 17. Chief Justice John Roberts took the least, fewer than five per year.  Scalia and Justice Clarence Thomas spoke at separate Federalist Society events in the Palm Springs area sponsored by Charles Koch,  who has poured millions into conservative causes. Scalia  attended events sponsored by the conservative Federalist Society more than 20 times over about a decade in resort towns that include Park City, Utah, and Napa, Calif. Breyer traveled to London, Luxembourg and Sun Valley in 2014 with groups picking up the tab. Whether or not this is an actual ethics violation, it doesn’t look good.  It undermines trust in the judiciary.

If poorly paid newspaper reporters  pass up freebies for the sake of professionalism, why don’t  highly paid U.S. Supreme Court justices? Even if it’s not required, why don’t they?  Perhaps it’s because federal judges, including U.S. Supreme Court Justices, have lifetime tenure. Maybe it really  doesn’t matter to them whether or not people think they are objective. They can’t be fired.  Which is a very good reason for term limits for federal judges.

Filed Under: DISPATCHES Tagged With: ,

New Book on Age Discrimination in Employment

February 1, 2016 by Leave a Comment

I am pleased to announce the publication of my new book, Overcoming Age Discrimination in Employment: An Essential Guide for Workers, Advocates & Employers, a timely and much needed resource to understand the major law governing age discrimination law in the United States.

old paper or parchment

This book provides an easy-to-understand overview of the Age Discrimination in Employment Act of 1967 (ADEA), using real cases from the federal courts and the U.S. Equal Employment Opportunity Commission to demonstrate how common age-related issues in the workplace are analyzed and decided under the law.

Overcoming Age Discrimination in Employment helps employers avoid costly age discrimination lawsuits, damage to reputation and unnecessary turnover at a time of increasing competition for skilled workers. It helps workers understand, confront and overcome age discrimination in employment, which can lead to job loss, a depleted savings account, forced early retirement, and years of impoverishment.

A number of factors make older workers more vulnerable to age discrimination in employment today than in the past.

A major reason why older workers face epidemic age discrimination today is that the ADEA offers far less protection to older workers than Title VII of the Civil Rights Act of 1964 provides to victims of employment discrimination on the basis of race, sex, religion, color and national origin. Meanwhile, the difficult economy since the Great Recession has given employers unprecedented incentive to replace experienced higher-paid older workers with cheap young labor. The problem of age discrimination has not only been ignored by the Obama administration but has been made considerably worse.

The book answers such questions as:

  • When do ageist remarks rise to the level of illegal harassment?
  • What common and often successful ploys do employers use to hide age discrimination?
  • What is “reasonable” age discrimination?
  • Why are employers invariably the big winners in the EEOC’s mediation and conciliation programs?
  • What factors influence whether the EEOC will dismiss an age discrimination charge outright without even an investigation?
  • When does an employment relationship exist?
  • Can an age discrimination victim win an ADEA lawsuit and yet not qualify for any monetary damages? (Hint – Alas, yes)

Overcoming Age Discrimination in Employment should be on the bookshelf of every worker, employment law attorney, and Human Relations officer. The book is available as an e-book and in paperback format on Amazon.com.

Filed Under: DISPATCHES

Appeals Court Strikes a Blow for Unrepresented Litigants

January 2, 2016 by Leave a Comment

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).

Filed Under: DISPATCHES, EMPLOYERS Tagged With: , , , ,