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The Age Discrimination in Employment Act “ADEA” of 1967 prohibits age discrimination in employment by protecting certain applicants and employees over the age of 40 from discrimination on the basis of age in all aspects of employment.
The Act also prohibits harassment of a person because of his or her age. Age discrimination in the workplace is prevalent, with 2/3 of older job seekers reporting discriminatory encounters.
When developing affirmative defenses to the Age Discrimination in Employment Act violations and EEO laws, it is more important than ever for Colorado employers to understand their state’s case law regarding EEOC age discrimination in the workplace and to take action to ensure no lawsuits are filed against them.
- If employers are aware of the law and facts about age discrimination, they can model their behavior and policies around establishing a discrimination-free work environment.
Watson & Associates’ Age Discrimination and employer defense lawyers agggressively represent Colorado employers facing discrimination charges and need help defending the company’s reputation and against false discrimination claims.
Employment Discrimination and Employer Defense Legal Services
At Watson & Associates, LLC, our age discrimination defense lawyers help Colorado employers to:
- Respond to EEOC investigations for charges of age discrimination
- Develop internal policies and controls
- Develop viable affirmative defenses
- Defend against wrongful termination
- Internal investigation for allegations of violation of EEO laws.
- Litigation defense legal services
Call our Denver CO Age Discrimination in the Workplace defense lawyers today at 720-941-7200.
EEO Laws – Inconsistent Court Positions
IS AGE A PROTECTED CLASS?
Regarding EEO laws, there is a split among judges in Colorado district courts concerning the burden for proving employment age discrimination in the workplace that has not yet been resolved or even acknowledged. For example, in Sherman v. Motorola Sols, Inc., Judge Hegarty cites Gross v. FBL Fin. Servs., Inc., stating that the burden is on Plaintiff to prove that age was a but-for cause of the challenged adverse employment decision. Six days earlier, in Jaffrey v. PorterCare Adventist Health Sys., Judge Wang acknowledged the Supreme Court’s decision in Gross, but stated that the binding precedent in the Tenth Circuit holds an employer liable under the EEO Age Discrimination in Employment Act “if other factors contributed to its taking an adverse action, as long as age was the factor that made the difference.” Age need not be the sole factor under Jones, and thus the burden-shifting McDonnel Douglas framework applies until “further action from the Supreme Court or an en banc decision of the Tenth Circuit.”
TIP: This is good for employers to know, as when they are writing EEOC position statements or answering complaints, they can argue that the Plaintiff must meet the more burdensome standard of Gross, but they must be aware of this district split.
In Jaffrey, the employer made several mistakes that lost their motion for the court to reconsider their motion for summary judgment. In their motion for reconsideration, they make arguments not proffered in their initial motion for summary judgment that the court refuses to consider. Additionally, the employer makes arguments with no citation to case law, and when the employer does cite to case law, it is law that is outside of the controlling jurisdiction which the court is not bound by.
- TIP: When developing discrimination affirmative defenses, these cases show that employers simply must take every case seriously. Hiring the best employment age discrimination defense attorneys to perform quality work could have won the employer’s motion, thereby getting them out of court and saving them thousands of dollars.
- These simple mistakes have now placed the employer in front of a jury for trial, where their likelihood of winning drastically decreases.
In Sherman, the employer motioned for summary judgment on Plaintiff’s claims under the Age Discrimination in Employment Act and CADA for disparate treatment based on constructive discharge, retaliation, and failure to promote. As for constructive discharge, the motion was denied, as case law strongly favors this issue being decided by a jury, and the judge found that the evidence presented was subject to more than one interpretation. Here, the employer made the mistake of implementing a Performance Improvement Plan (“PIP”), then changing it last minute before termination.
The key to PIPs is consistency; they are a set plan to improve performance and should not be changed as they are implemented. This makes the employee’s job security wholly unpredictable. If a PIP is completed, and improvement is still needed, another PIP should be implemented after the employee has completed the initial PIP. Otherwise, as in this case, it could be interpreted as an attempt to push an employee to termination by continuously moving the goal post. Additionally, if a PIP is difficult or impossible, that could be considered materially adverse in that it is meant to lead to termination.
Additionally, proximity can be used to prove motivation for an adverse employment action in the Tenth Circuit. In this case, the PIP was issued two weeks after the Plaintiff complained about negative conduct by his coworkers based on his age. The court found that these facts about age discrimination in the workplace precluded summary judgment for the retaliation claim.
TIP: When employers receive complaints about violations of EEO laws, not only should they thoroughly investigate and create reports, they should also note when the complaint occurred and make a conscious effort not to retaliate against the employee.
- Retaliation often occurs when it is the supervisor who is being complained of.
- When considering age discrimination affirmative defenses, employers should take extreme caution to keep complaints confidential, as to not encourage supervisors to retaliate.
The employer succeeds in getting the failure to promote claim dismissed, as Plaintiff did not include this claim in his EEOC charge.
TIP: Employers should thoroughly read all EEOC documents to ensure plaintiffs have exhausted their administrative remedies for each and every claim.
In Applegate v. Health Consultants, Inc., the court found that the termination of an elderly couple for acting aggressively and threatening the safety of other employees was a legitimate business decision. Workplace violence is a great matter of concern in Colorado, and courts give great deference to employers when it comes to safety. Additionally, the couple was hired when they were older than fifty, which negated any age bias.
In DePaula v. Easter Seals El Mirador, the employer succeeded on a motion for summary judgment by proving it had two legitimate reasons for termination: financial difficulty and Plaintiff’s inadequate performance. The employer did this with extensive evidence, including financial statements, meeting minutes, numerous employee testimonies and affidavits, Plaintiff’s termination letter, memos sent to Plaintiff during his employment regarding his poor performance and suggested changes (which he failed to implement), and a documented fine for which the Plaintiff admitted responsibility. Plaintiff could not prove the proffered reasons for termination were pretext, as there was so much evidence to show otherwise. This shows that employers who do the legwork in the workplace instead of in litigation often save themselves time and money in the long run.
TIP: Documenting every single performance issue and meeting, in intricate detail, at the time it occurs, makes all the difference. Documenting these instances post-termination only increases suspicion of discriminatory intent.
TIP: Detailed termination letters with attached documentation of performance issues also often serve as a deterrent to litigation. It is helpful to consult with an employment attorney when terminating an employee to write termination letters, and/or to ensure that the correct steps are taken.
In Bondarenko v. Potter, the employer won a motion for summary judgment of an Age Discrimination in Employment Act claim because applicants who were selected for promotions were over the age of 40, and thus were members of the employee’s own protected class. Decision-makers were also wholly unaware of Plaintiff’s age. Additionally, the employee failed to show pretext because the applicants had experience in the positions they were selected for, while the employee had none.
The employer also won the motion regarding an ADA claim because the Plaintiff failed to show the connection between the adverse employment actions and his disability. Again, Plaintiff was unable to prove that the decision-maker in this situation knew of his disability. Employers who base their promotion decisions on employee’s merits, and can prove such, will usually not have an issue getting the claim dismissed.
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If you are a Colorado employer and need immediate help developing Age Discrimination in the workplace defenses in an EEOC case, call us immediately at 720-941-7200. FREE INITIAL CONSULTATION about EEO laws.
 Bondarenko v. Potter, Civil Action No. 07-cv-01286-EWN-CBS, 2008 U.S. Dist. LEXIS 47220 (D. Colo. June 18, 2008).
 Applegate v. Heath Consultants, Inc., Civil Action No. 1:16-cv-00648-RPM, 2017 U.S. Dist. LEXIS 120617, at *19 (D. Colo. Aug. 1, 2017).
 DePaula v. Easter Seals El Mirador, 859 F.3d 957, 971-973 (10th Cir. 2017).
 Applewhite, Ashton, You’re How Old? We’ll Be In Touch, New York Times, Sept. 3, 2016, accessed on 11/13/17.
 Civil Action No. 16-cv-01602-MEH, 2017 U.S. Dist. LEXIS 130154 (D. Colo. Aug. 16, 2017).
 557 U.S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009).
 Civil Action No. 15-cv-02297-NYW, 2017 U.S. Dist. LEXIS 126619 (D. Colo. Aug. 10, 2017).
 Id. at 9, citing Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1277 (10th Cir. 2010).
 Id., citing Bradley v. Denver Health & Hosp. Auth., 734 F. Supp. 2d 1186, 1208 (D. Colo. 2010).