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Age Discrimination Lawsuit and Case Study

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II. PROPOSED QUESTION:

Will David prevail in his age discrimination suit against ABC?

II. SHORT LEGAL ANSWER:

Yes, David will prevail in his age discrimination lawsuit against ABC because the behavior of the supervisor violated the Age Discrimination in Employment Act (ADEA) enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

III. RESEARCH IN SUPPORT OF YOUR ANSWER

* Jason, a 35 yr. old employee was promoted to foreman while passing over David and has been with the company 2 years. * David, a 60 yr. old employee has been with the company for 15 years with excellent evaluations. * The immediate supervisor told David that “Jason is going to places in this Company”. * When David applied for the job, the supervisor told him he was too old for the job and preferred a younger man who would be in the job for “more than just a couple of years.” CASES RESEARCHED A. Jones v. Dillard’s, Inc.
Discrimination claim based on age from Gerda Byrd who alleged that Dillard’s took adverse action against them in their jobs. Alabama based case tried in 2003. In 1998 Gayferd’s Department Store was purchased by Dillard’s, Inc which she was an office and credit manager. There was no position at Dillard’s and she was placed as an assistant area sales manager to keep her at the same pay rate. She then learned the AASM position was being eliminated with no intention of ever hiring them again. In 1999 they offered her an opportunity to sell cosmetics which she declined due to lagging sales and the likelihood of termination when she couldn’t meet sales goals. She took severance pay due to the position being eliminated and took 47 weeks of pay. Byrd later discovered that one month later the operations manager was told to hire two new AASMs. The court reversed the original summary judgment to Dillard’s and reversed and vacated in part the district court’s judgment.

B. EEOC v. Kmart Corporation, et al.
Over the course of 4 years a 70 year old pharmacist was harassed for still working at his age. The pharmacy manager openly professed on several occasions that he was “too old” and “should just retire” and was “greedy” for continuing to work. Kmart settled for $120,000 with the EEOC based on discriminatory remarks made by the pharmacy manager.

C. Wilkerson v. Martin Marietta Corp
In After a lengthy lawsuit filed in early 1994, Lockheed Martin Corporation (owner of Marin Marietta Corp) agreed to settle for $13 million in one of the nation’s largest age discrimination lawsuits on the behalf of 450 former employees who were targets of age discrimination at Martin Marietta. Further, Lockheed Martin is rehiring as many as 2,000 people laid off between Jan 1990 and Dec 1994.
Lockheed Martin is also providing a two year outplacement service for former employees as well as up to two retraining courses per semester up to eight courses.
STATUTES
* The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older. * The Civil Rights Act of 1991, which provides monetary damages in cases of intentional employment discrimination.

RECENT PUBLICITY * The EEOC is currently (and publicly) filing lawsuit against Wal-Mart for Age discrimination based on a store manager harassing and then firing an employee because of age. The man harassed with 54 at the time with inappropriate comments unlike this situation made to the employee from his direct supervisor. * In an article in 2008 titled “High court eases age-bias lawsuits” the court ruled in favor of fired workers at Lockheed Martin. The very public ruling made it easier for workers to win lawsuits claiming a company policy discriminates against older employees and awarded damages to 17 individuals over the age of 40.

CONCLUSION
Based on ADEA statute, precedent and the facts provided by ABC’s Employees it is extremely likely that David will be able to provide the EEOC with a prima facie case strong enough to file suit against the company. Taking into account recent precedent set by the above cases, David’s 15 year tenure with the company and his excellent review history it is unlikely that Jason, an employee of 2 years being promoted to foreman will pass the “considerations other than age” requirements of the ADEA.
There is also the matter of comments made to David from his supervisor regarding Jason’s future with the company and a comment directly related to David’s age which will be difficult to defend under the circumstances surrounding recent publicity with Wal-Mart and Lockheed Martin. These comments are blunt violations of the EEOC’s enforcement of age discrimination in the workplace and will provide further evidence that age was a considering factor in Jason’s promotion.

RECOMMENDATIONS
It is not my recommendation that ABC wait for the EEOC to perform investigation and file suit against the company. In recent history these proceedings become public affairs and will reflect poorly on ABC and its management regardless of the court’s ruling. ABC’s management should begin mediation with David to prevent suit being filed with the goal of settlement outside of court with ABC’s remedial options including: * Discrimination training for all management positions * Possible dismissal of the offending supervisor pending mediation results with David * Immediate promotion opportunity for David and other age-protected employees * Review and/or additional provisions to the employee handbook regarding ADEA in the workplace * Immediate review of all offices for similar exposure

Works Cited

"EEOC Home Page." EEOC Home Page. Web. 9 Oct. 2014.

"Federal Laws Prohibiting Job Discrimination Questions And Answers." Federal Laws Prohibiting Job Discrimination: Questions And Answers. Web. 9 Oct. 2014.

"Kmart To Pay $120,000 To Settle EEOC Age Bias Suit." Kmart To Pay $120,000 To Settle EEOC Age Bias Suit. Web. 9 Oct. 2014.

"Age Bias Suit To Be Settled By Lockheed." The New York Times. The New York Times, 21 Nov. 1996. Web. 9 Oct. 2014.

"WILKERSON v. MARTIN MARIETTA CORP. | Leagle.com." WILKERSON v. MARTIN MARIETTA CORP. | Leagle.com. Web. 9 Oct. 2014.

"JONES v. DILLARD INC." Findlaw. Web. 9 Oct. 2014.

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