There have been quite a few interesting age discrimination cases coming out of the US this year. So, in no particular order, here are our top 6.

Know of any more? Let us know in the comments.

1. 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 awarde.

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.


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