Age Discrim. Lawsuits: Like Shooting Fish in a Barrel

The underlying premise of our legal system is that two competent adversaries plead their case before a neutral arbiter.

A recent decision by the Supreme Judicial Court in Massachusetts, the state’s highest appellate court, shows just  how unrealistic this premise is today when victims of age discrimination who are poor or middle class cannot afford to hire an attorney. These unrepresented plaintiffs are routinely denied access to justice.

The case involves an age and gender discrimination complaint filed by Carolyn O. Faulk, who was fired by CVS Caremark Corp., and  Stanley D. Howard, who contributed to Faulk’s support after her dismissal. He essentially sought reimbursement from Caremark

The trial court denied Ms. Faulk’s request for the appointment of counsel and dismissed Howard’s claim on the grounds that he lacked “standing.”  Howard filed an appeal and both Faulk and Howard sought to temporarily halt the proceedings until the appeal was decided. Caremark filed a motion for sanctions against the plaintiffs.

Needless to say, Faulk and Howard lost at every turn. Their complaint was ultimately dismissed. Caremark’s motion for sanctions was allowed to proceed. The state’s high court affirmed the lower court, ruling that the issue of whether Faulk was entitled to court-appointed counsel was  “moot” because her case had been dismissed.

In any case, the appeals court said, Faulk failed to meet her “burden to allege and demonstrate the absence of inadequacy of other remedies.”  The court said Faulk could have sought interlocutory review of the denial of her motion for the appointment of counsel “pursuant to G.L. c. 231, § 118m first par. … ” Alternatively, the court said, she could have sought review of the denial of her motion in a direct appeal from the judgment of dismissal.

Of course, this presumes that Faulk understood her options without having the benefit of legal counsel to advise her. I daresay that few lay people could define the term “interlocutory appeal” let alone file one.  So Faulk’s case, at least arguably, was dismissed because Faulk didn’t have an attorney.  And her appeal of the trial court’s motion denying her an attorney was dismissed because …. she didn’t have an attorney.

This case, like millions of other, demonstrates the urgent need for modernization of our nation’s court system to insure there is some semblance of parity between unrepresented individuals and the team of expert counsel employed by major corporations like Caremark. This is no longer a system between two competent adversaries. Today,  age discrimination cases are the equivalent of shooting fish in a barrel for corporate defendants, who retain a team of staff attorneys and hire specialized counsel to overwhelm individual plaintiffs without counsel.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I refer to research showing that individuals who file employment discrimination complaints feel the court system is profoundly unfair. It’s hard to argue with this when courts allow the underlying issue – discrimination – to be completely obscured by complicated, obtuse procedural motions. It’s hard to know whether justice was done in Faulk’s case but clearly she was at a major disadvantage because she wasn’t represented by legal counsel who understood the court’s complex procedural rules.

The case is Carolyn O. Faulk and another v. Caremark Corp. and others, October 24, 2014.