Age bias in IT: Should you sue?

Age discrimination complaints are on the rise. In the last 10 years, according to figures from the U. S. Equal Employment Opportunity Commission (EEOC), the number of age discrimination charges filed with the commission rose from roughly 16,000 in 2000 to more than 23,000 in 2010.

And lawyers and employment specialists say the number of lawsuits is up dramatically as well.

While the EEOC doesn't break out statistics specifically for IT, there's no indication the tech industry isn't experiencing its fair share of legal wrangling. Just this month, high-tech giant 3M agreed to pay $3 million to former employees and adopt preventive measures after the EEOC filed a lawsuit charging that the company laid off hundreds of employees over the age of 45 with the intention of making way for younger workers.

And consumer tech darlings Apple and Google are both currently enmeshed in age-discrimination lawsuits as well.

In October of 2010, a former employee of an Apple retail store in Orlando filed suit against the company, alleging that his managers routinely ignored and denied his requests for promotion and instead promoted younger workers with less seniority and fewer qualifications. He was 60 years old at the time he was hired. The case is still pending.

And Brian Reid, who had been hired as Google's director of operations in 2002 at age 52, filed suit against the company after he was fired in 2004, claiming he was commonly referred to as "old man" and an "old fuddy-duddy" and was told he was not a "cultural fit."

The case was dismissed by a Santa Clara County judge 2005, but an appeals court reinstated it in 2007, a ruling that was upheld by the California Supreme Court in 2010. The case is now cleared to proceed to a jury trial, though no date has been set.

Getting an age discrimination case in front of a jury means the plaintiff has a good chance of winning, or successfully settling, the suit, says Robert Ottinger, a partner in the New York office of The Ottinger Firm PC, a law firm that specializes in employment law but is not involved in the lawsuits mentioned above.

A 2009 U.S. Supreme Court decision, Gross v. FBL Financial Services, raised the bar for age discrimination cases, saying that plaintiffs, and not the companies being sued, bear the burden of proving a dismissal or reassignment of duties was due to age and not some other factor. But even so, Ottinger says, jurors often react more to the "story" of the suit. "You get [a case] in front of a jury, and the jurors think, 'We know what's going on here,'" he explains.

What's more, the Gross decision only applies to the federal Age Discrimination Employment Act (ADEA). Ottinger says that when he works on an age discrimination suit, he usually uses state laws, most of which are much stronger than the federal statute and carry easier burdens of proof.

The best-case scenario, says Ottinger, is when he's able to show a pattern of discriminatory behavior by the employer: If a company laid off mostly older workers and then hired a bunch of recent college graduates a few months later, for example. (In fact, under the a 1990 amendment to the ADEA, when employers undergo restructurings, lay people off or offer early retirement plans, they are required to provide information about the ages of both terminated and retained employees.)

Ottinger insists that age discrimination suits are "very winnable." But statements like that trouble Laurie McCann, a senior attorney at AARP Foundation, a charitable arm of senior advocacy group AARP that's focused on helping people 50 years and older meet their basic needs.

McCann says it's essential that older workers have a clear-eyed view of the litigation process before they decide to sue. "Any large employer is likely to retain a large law firm with tons of associates who will try to 'paper' you to death," McCann warns. "They'll depose you, they'll make a motion to dismiss, they'll make a motion for summary judgment. You need to be prepared for that.

"Filing a lawsuit is expensive, in terms of the financial cost and the emotional toll," McCann explains. "And it's not just you. If you're married or have kids, everyone is going to be impacted." She emphasizes that she's not saying older workers should never sue, only that they should be sure that they've taken the following steps before they file a lawsuit.

Step 1. Take preventive measures to ensure that managers have no reason to find fault with your work, says McCann. That means making sure your skills are up to date (a particular challenge in IT, McCann acknowledges), volunteering for new projects and extra assignments, taking advantage of any training the company offers, letting your superiors know you're interested in promotions and in general working to counter any stereotypes about older workers.

Step 2. If you're still employed but suspect you're being passed over or demoted because of your age, let someone in the company know your concerns. It could be your supervisor, if you feel that he or she would be receptive to what you have to say; or it could be someone from the human resources department, which is typically responsible for seeing that the organization complies with the ADEA and other employment mandates.

Step 3. File a charge with the EEOC. This is mandatory if you think you'll eventually end up suing. You don't need a positive finding from the EEOC investigation to pursue a lawsuit -- in fact, you don't even need to wait for a decision; you can initiate a suit 60 days after filing your claim -- but the process can be beneficial, particularly if you have a good EEOC investigator. "It's free discovery," says McCann, adding that the investigation often can indicate how the company would defend itself in a court of law.

If you do file a charge with the EEOC, McCann says you should politely but firmly keep up with the investigation and communicate with the investigator assigned to your case. You might want to suggest employees or former employees for the investigator to contact, for example.

Step 4. If all else fails, file a lawsuit. Guidelines for taking legal action are available on the EEOC website.

What does it take to successfully sue? Ottinger offers the following checklist:

-- You must be over 40. That's when the ADEA kicks in.

-- You must be able to prove that age was a motivating factor in your dismissal. The older you are the higher your salary is likely to be, and that gives employers a lot of cover. "They can legally hire someone who is one-third of your price, and that's not illegal," says Ottinger.

-- You must be able to demonstrate that your performance was not at issue.

And then, you need stamina. Remember, the Google case is still making its way through the courts, eight years after plaintiff Brian Reid lost his job.

Copyright © 2011 IDG Communications, Inc.

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