Boost in Age Bias suits from ‘Boomers’

May 12, 2007

Baby boomers not shy about asserting their rights have triggered a new wave of age bias lawsuits, creating a host of legal challenges for employers that may not even be aware that discrimination is going on in the workplace.

Employment attorneys say the surge in age bias lawsuits is mainly due to the fact that a large part of the work force is getting older, staying healthier and choosing to work longer.

Corporate downsizing, layoffs and rising health care costs are also driving the litigation, along with recent court decisions that have given plaintiffs more legal ammunition in age bias suits.

As a result, employers are increasingly landing in court, defending against an older and bolder work force suing over the right to work.

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Employers’ lawyers also note that recent court cases, along with reports of big verdicts, have put age bias claims on the radar screen when they weren’t there before.

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In Connecticut last year, a chief engineer of Indian descent won an $11 million verdict against General Electric Co. after convincing a jury that he was passed over for promotions and management positions by younger, white males. Mody v. General Electric, No. 3:04 CV 358 (D. Conn.).

In Florida, a jury in October issued a $2.3 million verdict for a group of decorated police officers in their 50s who claimed they were passed over for promotion because of their age. Hogan v. City of Hollywood, No. CACE04014128 (Broward Co., Fla., Cir. Ct.).

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Last month, a Washington attorney in his 50s filed suit against Akin Gump Strauss Hauer & Feld alleging that he was fired from the firm because he was too old. Gross v. Akin Gump, No. 07 CV 399 EGS (D.D.C.).

More than two dozen partners at Sidley Austin are challenging their firm’s mandatory retirement policy in a class action that has been filed by the Equal Employment Opportunity Commission. EEOC v. Sidley Austin Brown & Wood, No. 05 C 0208 (N.D. Ill.).

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On the class action front, more than a half-dozen class claims for age discrimination have been filed against employers, including a recent lawsuit against the Federal Aviation Administration.

In January, a judge allowed about 800 Federal Aviation Administration employees to proceed with an age discrimination lawsuit that claims an FAA decision to contract out flight-service functions was timed to deny federal retirement benefits to 1,770 flight service controllers who were older than 40. Breen v. Peters, No. 05-654 (D.D.C.).

According to the EEOC, the number of age discrimination complaints to the agency has actually decreased in recent years, from 17,400 in 2001 to 16,548 in 2006.

But attorneys note that those numbers do not reflect private lawsuits that are filed in state courts, which is where plaintiffs’ lawyers more often choose to go because state laws allow for more in damages.

The EEOC numbers also do not reflect the growing number of employees who hire attorneys either just to scare the employer or to investigate their age bias claims without filing suit.

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Plaintiffs’ attorney Gary Phelan of Outten & Golden’s Stamford, Conn., office, whose New York firm has seen a 50% increase in age bias claims in the last year, claims that employers still aren’t taking age discrimination seriously.

“We still see comments relating to ‘old timers,’ to ‘slowing-down dinosaurs,’ all those kinds of comments are still fairly common. They’re seen as kind of joking around, that they’re sort of fair game. But those comments certainly come back to haunt employers when people like us become aware of them,” said Phelan.

Phelan said he’s seen an increase in age discrimination lawsuits, particularly in the sales professions and the information technology industry, where employers want younger faces pushing their products and more tech-savvy employees up on the latest computer advances.

Another new trend is that the age discrimination plaintiff is getting younger, Phelan added.

“It used to be those in the late 50s early 60s. Now it’s the early 50s and sometimes late 40s group,” he said.

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