English S.B.

Discrimination against age

. CANETE V. BARNABAS HEALTH SYSTEM, ET AL., 3RD

CIR., 2018
In this case, the 3rd Circuit Court of Appeals has made an interesting decision
about harassment in the workplace. 

In this case, the claimant, Mr Canete, has retired from the military and began
working as a registered nurse at the hospital. 

He brought a claim of age discrimination in relation to an alleged age-related

“hostile” work environment. He cited as evidence:

 He was told he didn’t understand how the office printer worked

 He had been laughed at for inadvertently answering the phone using his
military rank
 His being forced to take retraining on basic nursing skills

The 3rd circuit held that he had not experienced a “hostile” work environment.
The incidents Mr Canete experienced were simply annoyances. Accordingly, the
3rd circuit dismissed Mr Canete’s claim of age discrimination.

The judgment is available here .

2. OWEN V. STMICROELECTRONICS, INC. 

In this case, Mr Owen worked in an inhouse counsel role at STMicroelectronics
(STM). After a short stint at STM from 2007-2008, he returned to the company
in 2013 in a paralegal role.

Opportunities at STM opened up for junior and senior attorney positions. Mr

Owen expressed an interest in the senior position, but was told that STM did not
want “someone with so much experience that they would be inflexible”.

STM advertised for the senior role seeking someone “with about 10 years of
experience”. Mr Owen applied, but was unsuccessful. Mr Barrett was hired
instead, who, at 36 years of age, was substantially younger than the 64 year old
Mr Owen. Mr Owen’s paralegal position was subsequently eliminated and he
found himself no longer working at STM.

The court said that there was enough evidence to go to trial. While the company
may not have intended to discriminate against older people, the language used
could be indicative of age discrimination. Unless it settles earlier, the case will
now proceed to trial.

This case highlights the dangers around the language used in recruitment. Words
and phrases like "digital native" and "energetic" can suggest a bias against older
workers, whilst “gravitas” can suggest a bias against younger workers.
“a reasonable juror could find [the supervisor’s] comment about experience and
inflexibility to be indicative of age discrimination.”
— United States District Judge Karen Gren Scholer
The judgment is available here .

3. CODE RAEL V DANAHER CORP

This case is interesting simply because of the size of the compensation awarded.

Codie Rael worked across Southern California from November 1978 for various
subsidiaries of Washington-based parent company Danaher but was forced to
resign in October 2014. She claimed that her bosses would repeatedly made
remarks that "you are outdated," ''part of the old culture" and a "dumb female".
She also claimed that she was told that her employer “need[s] younger
workers”. Court papers state that Rael was replaced by her employer with a man
in his 20s.

The jury accepted Rael's claim that she had also been the victim of age
harassment, wrongful termination and retaliation, finding that her employers
acted with malice, oppression or fraud. The jury awarded Rael $3 million in
compensatory damages and a further $28 million in punitive damages.

Claims involving massive amounts of compensation like this are not unusual in
the US. Last year a jury awarded $51.m over a systematic plan to "replace [older
workers] with younger workers" , whilst in 2016 a Missouri woman won £20m after being
placed on a performance improvment plan whilst on medical and informed that "this will
not end well" .

COMMENT ON PUNITIVE DAMAGES IN THE UK

Although Employment Tribunals in the UK have power to aggravated damages
in particularly egregious cases of discrimination, the power is rarely used and
awards are comparatively low compared to the scale of punitive damages
capable of being awarded in the US.

4. EEOC V SEASONS 52
This case is interesting for two reasons. Firstly because it is a class action –
something not seen in the UK – but also secondly because of the company’s
motivation for its discriminatory practices, namely that it was driven by a desire
to appeal to a certain demographic.

In this case, Seasons 52, a national, Orlando-based restaurant chain, became

subject to a class action alleging that the company labelled male job applicants
over 40 such things as “old white guys” and rejecting female ones as
insufficiently “younger and fresh.”

The EEOC filed a claim, Civil Action No. 15-cv-20561-JAL, in February 2015 in
U.S. District Court for the Southern District of Florida. Initial attempts to settle
the case failed.

The EEOC obtained evidence from over 135 unsuccessful job applicants. Their
evidence was that Seasons 52 managers routinely made age-related comments
during their interviews.
“Most of the workers are younger”
“Seasons 52 girls are younger and fresh”
“Seasons 52 hires young people”
“We are really looking for someone younger”
The hiring rate for those aged over 40 was significantly lower for those aged
under 40. An economist hired by the EEOC concluded that there was a less than
1 in 10,000 chance of the company having the age demographic that they did.

The EEOC's office in Miami pursued the suit. Daniel Seltzer, the lawyer
responsible for the claim, said, “a desire to appeal to younger customers bled
into (the company concluding) ‘Well, we’ll appeal to younger customers by
having younger workers,’” he told an EEOC press call about the settlement.
After finally settling the class action, Seasons 52 will pay $2.85 million.

The EEOC's statement on the settlement is available here .

COMMENT ON OBJECTIVE JUSTIFICATION IN THE UK

The extent to which market forces can justify age discrimination is not an area
which has been well tested in the UK.

Seasons 52 would be a case of direct discrimination – “we reject people because

they are old”. In the UK, age discrimination is the only strand of discrimination
for which objective justification is possible. The Supreme Court in Seldon held
that justification of direct age discrimination requires an aim that has a “public
interest nature”. The purely selfish interests of the employer are not enough.

Therefore, were it heard in the UK, Seasons 52 would surely fail. They rejected
older people because they wanted the “look” of their staff to appeal to their
target market. There was no wider social policy objective behind their hiring
policy.

(Perhaps if the facts a little different and Seasons 52's policy only applied in
restaurants located in areas with high youth unemployment, the position might
be different...?)

5. ALLAN CANDELORE V TINDER

In this case, a man complained that it was unfair for Tinder Plus to charge $19.99
a month to people over 30 and only $9.99 or $14.99 for those aged 30 or
under.

The claim failed at trial initially, as the judge held that the age-based pricing did
not constitute discrimination because it was based on market testing showing
that younger users are more budget-constrained.

But a three-judge appeals panel in Los Angeles revived the class-action case,
concluding that the pricing model “employs an arbitrary, class-based
generalization about older users’ incomes as a basis for charging them more
than younger users.” The case was appealed again.
In this latest hearing, a panel of seven judges in the California Supreme Court
denied Tinder permission to have another chance to argue their case. The Court
decided to let stand the earlier ruling that the age-based discount for its
premium service violated the California civil rights.

The judgment is available here .

6. IMDB V XAVIER BECERRA AND THE SCREEN ACTORS

GUILD AMERICAN FEDERATION OF TELEVISION AND
RADIO ARTISTS 
In this case, a California law which required services like IMDB to withhold the
ages of the actors featured on the site was challenged by the Screen Actors
Guild American Federation of Television and Radio Artists (SAG-AFTRA). The law
was intended to prevent age discrimination in the acting world as those casting
would be unable to find the true age of those auditioning

IMDB challenged the law as unconstitutional . A temporary injunction against the

state of California was awarded by the courts, forbidding the law from being
enforced until while the courts determined its constitutionality. 

At the final hearing, the state of California conceded that the law did impact
upon free speech. 

The court did not agree with SAG-AFTRA's argument that publication of facts
about the ages of people in the entertainment industry can be banned because
these facts "facilitate" age discrimination. The court commented that this was an
argument that, if successful, would enable states to forbid publication of
virtually any fact.

The court said that California has a compelling interest of combatting age
discrimination in the entertainment industry when it passed the law, but said
"Regulation of speech must be a last resort".

The court made an further interesting further observation in relation to the

purpose of the law. 

"The legislative materials repeatedly cite an article discussing "[t]he commonplace

practice of casting a much younger female against a much older male" and
lamenting the significant underrepresentation of women in leading roles and in
directors' chairs. The defendants describe this as a problem of "age discrimination."
While that may be accurate on some level, at root it is far more a problem of sex
discrimination.  Movie producers don't typically refuse to cast an actor as a leading
man because he's too old for the leading woman; it is the prospective leading
woman who can't get the part unless she's much younger than the leading man.  TV
networks don't typically jettison male news anchors because they are perceived as
too old; it is the female anchors whose success is often dependent on their youth.
This is not so much because the entertainment industry has a problem with older
people per se.  Rather, it's a manifestation of the industry's insistence on objectifying
women, overvaluing their looks while devaluing everything else."

The judgment is available here .

EDIT: In November 2018, IMDB submitted papers to the 9th Circuit Court of Appeals
to appeal the decision.
SAMPLE PLAN OF INVESTIGATION

Please note that this sample is by no means prescriptive but should be used as a guide.

My group members and I have chosen the theme skin bleaching. I will be focusing on:  The negative
effects of skin bleaching. I have chosen this topic because I have observed that skin bleaching is quite
common in my society and I have noticed how it has changed the appearance of people I know. I
would like to know more about its negative effects, so I can educate my friends and family about the
dangers of this practice, so they can avoid doing it.

Engaging in this research will be most beneficial to me because it will enhance my competence as an
English student. It will build my vocabulary because I will come across different words and terms as I
search for the most appropriate pieces. An increased vocabulary will also improve my written
expression and reading comprehension.

I intend to gather information for my topic by consulting a variety of sources for meaningful
information. I will visit the library and browse the internet for articles, poems and pictures on my topic
and consult YouTube for potential videos. I aim to use an online article, a picture and a YouTube video
that show the effects of skin bleaching for my pieces. These pieces will be further analysed by
identifying the writer’s techniques, devices and evaluating how these are used to achieve the purpose
of the pieces. All this will be done to see how the pieces contribute to the overall theme and my sub-
topic.