Employment Lawyer Blog

On January 22, a protracted age discrimination lawsuit came to a close in California, when 17 Hollywood studios, television networks, and talent agencies agreed to pay out $70 million to a class of television writers over the age of 40 who had alleged violations of the Labor Management Relations Act, the Federal Age Discrimination in Employment Act, and California's Fair Employment and Housing Act. The talent agency International Creative Management (ICM) settled a related matter in August, 2008 -- paying out around $4.5 million in settlement monies to the plaintiffs.

Around two thirds of the $70 million will be paid by insurance companies representing the defendants. 165 members (and settlement classes) will divvy up the money through something called the Fund for the Future, which will be overseen by members of the settlement class to be used for loans and grants to help writers with medical insurance and pensions.

This age discrimination litigation has been keeping lawyers for the networks and studios busy for about a decade. The ruling by the California Superior Court may mark a turning point for the entertainment industry, which only recently resolved a protracted and painful TV and movie writers strike.

Industry insiders have often argued that studios and networks -- which relentlessly target youth culture and the 18-25 demographic -- cultivate a hostile climate for older writers. Not all industry players agree, however. For instance, one analyst has pointed out that many of today's most successful television comics -- and writers for both drama and comedy -- are age 40 and above. An opposite charge is also often levied: that Hollywood can be unusually hostile to aspiring talent. Hollywood wannabees often must endure years of busy work and grueling assistant jobs before being able to work in truly creative capacities.

If you or anyone you know has been the victim of age discrimination in Hollywood, New York, or anywhere else, the firm of Joseph, Herzfeld, Hester, & Kirschenbaum may be able to assist. As with most employment-related claims, there are inherent deadlines by which you must take specific legal action to preserve your rights. Discuss your matter with us in confidence ASAP at 1-866-348-7394, or visit us online at www.jhllp.com for information about our services and credentials.

It seems like every day in the news we read about new cases of ferociously unfair workplace discrimination in New York, as well as harassment, wage and hour violations, and retaliation. Unfortunately, by the time that independent parties are brought in to resolve workplace frustrations, it is often too late to avoid lawsuits and litigation. But could there be a simpler way to preserve employee rights and protect the business interests of employers?

Perhaps.

One new method has shown startlingly positive results in a number of industries. It can be summed up in single word: Awareness.

Simply put, when workers become more aware of one another's concerns, sensitivities, and proclivities, uncomfortable situations seem easier to resolve. This may sound like common sense, but it is common sense uncommonly practiced.

How might increased awareness of others lead to problem resolution?

1) Awareness leads to empathy.

Often, in workplace situations, people have a 'me against the world' mentality. This isn't necessarily a bad thing -- after all, we live in a capitalistic culture that has generated amazing results. But when the pursuit of wealth and power becomes the singular objective of workers and bosses alike, it can lead to insensitivities that can corrupt institutions and ultimately drag down efficiency. For instance, suppose a manager at a bank ruthlessly pursues policies to squash his subordinates and better his peers for the sole purpose of climbing the corporate ladder. He might ultimately get promoted. But his behavior diminishes his corporation. As a result, everybody loses in the end. Moreover, this ruthless pursuit of power blinds him to legitimate concerns that his subordinates may have, including concerns about untoward harassment and discrimination.

Conversely, consider a manager who cultivates awareness of his coworkers and subordinates. He may develop 'win-win' solutions to common on-the-job problems. As a result, he will likely be more sensitive to concerns about harassment and discrimination, be faster at resolving these situations and therefore be more effective at advancing not only his interests but also the interests of his colleagues and his organization.

2) Greater awareness breeds greater mutual trust.

In modern corporations, depersonalization of employees is almost always a big problem. But by practicing awareness of those around you, you can identify problems proactively and nip them in the bud.

3) Awareness reduces stress.

A plethora of studies shows that mindfulness can reduce stress. This in turn can lead to a cascade of health benefits, including reduced cortisone levels, a higher level of fulfillment and satisfaction, and a greater sense of control and perspective. An ancillary benefit of practicing awareness of your moods and concerns -- and the moods and concerns of others -- is that you should be more alert at identifying office discrimination, harassment, and other misbehaviors before they become major problems.

For legal help resolving difficult or even intractable-seeming hostile workplace problems, contact the lawyers here at Joseph, Herzfeld, Hester & Kirschenbaum LLP at www.jhllp.com or dial us toll free at (866) 348 7394.

New York employment discrimination and retaliation cases drain millions of dollars and thousands of man-hours every year. What about the Big Apple makes some employees particularly vulnerable to being discriminated against on the job?

Here is some speculation:

1. To live well in New York City, one typically needs a lot of money.

New York City is notorious for being an incredibly expensive place to live -- particularly if you want to rent or buy in Manhattan or in the nicer neighborhoods of Brooklyn. Moreover, the city serves as the financial hub for the entire continent of North America.

With so much pressure to earn more, it's unsurprising that many workers "put up with" more discomforts and inconveniences than do their counterparts in Small Town USA.

2. Quality labor abounds.

Unlike in small towns, where good labor may be hard to come by, in New York City, great workers typically abound. When you feel like "just a number" -- and when your coworkers and bosses and clients see you as "just a number" as well -- this depersonalization sets the stage for sexual harassment, discrimination, and retaliation.

3. Company policies often confuse.

Different anti-discrimination and anti-harassment policies exist in different NY industries. If you switch companies (or divisions), you may have to adjust to new standards for what constitutes appropriate behavior, dress, and decorum. This buzzing confusion can lead to a misreading of signals and body language which in turn can lead to the committing of interpersonal offenses, including harassment and discrimination.

4. New York City's diversity has pluses and minuses.

For over a century, New York has constituted a melting pot. People from hundreds of different ethnicities mingle in the streets and work shoulder to shoulder. While this co-mingling no doubt diffuses certain racial and ethnic tensions, it also ironically has the capacity to increase tensions under certain circumstances and in the minds of some people.

Consider: Say your boss once had a terrible encounter with a Bangladeshi years ago on the NYC streets. If you also happen to be Bangladeshi, chances are that your boss may associate you with that sour encounter, and he may unconsciously thus become biased against you. This bias in turn can lead to racial discrimination.

5. The city can be difficult to navigate for older workers and disabled workers.

New York disability discrimination and age discrimination problems can emerge when a work environment presents physical challenges. A company that operates on the 11th floor of a building that has no elevator, for instance, may be loathe to hire a disabled worker who would otherwise be qualified, even if that decision violates the law. 

In other words, New York business owners and bosses can be tempted to subtly discriminate to gain what they might perceive to be a competitive edge.

6. The stress of the city can bleed into the workplace.

Honking taxicabs, smog, flashing billboards, and general hustle and bustle can raise cortisol levels and lead to more easily frayed nerves, which in turn can create conditions in which sexual harassment, discrimination, and retaliation can flourish.

For help dealing with your New York City employment discrimination situation, get in touch with the lawyers of Joseph, Herzfeld, Hester & Kirschenbaum LLP at once by dialing (866) 348-7394 or by checking out our online resources at www.jhllp.com.

While harassment and discrimination in New York workplaces can make the lives of city employees miserable, the Big Apple offers a slew of resources and solutions to aid workers and bosses alike in the ongoing quest for a stress-free, discrimination-free workplace. Here are some New York City specific resources and tools to combat discrimination, harassment, and retaliation on the job.

1. Ample free resources exist for members of the New York labor force. For instance, check out:

a. The New York Department of Labor's workforce website
b. The New York State's Workers' Compensation Board website
c. City service organizations -- including volunteer groups, non-profits, and religious groups -- also offer support, job placement help, and useful info.

2. The city boasts many laws designed to protect the rights of workers and to ensure that legal redress is possible. These include:

a. New York State Employment Safety and Security Act
b. Title 12 of the New York Codes, Rules and Regulations (NYCRR)

3. If you don't like your job, it is (relatively) easy to find a new one in the Big Apple.

New York City may have been slammed by the recent recession, but job opportunities in a wide variety of industries abound. Talk to an employment counselor to identify your career and financial objectives.

4. New York City boasts amenities to help people de-stress.

From four star gyms to superlative day spas to top notch executive career counseling, New York City has endless resources to help struggling workers relax, refocus, and re-engage. By taking advantage of these resources, employers and employees alike can reduce stress at the workplace and thus indirectly limit the number of sexual harassment, discrimination, and retaliation cases.

5. New York City has excellent legal help.

If you or a friend or coworker is struggling to deal with discrimination, harassment or retaliation at a New York City job, speak with the attorneys of Joseph, Herzfeld, Hester & Kirschenbaum LLP. Phone us for a free consultation at (866) 348-7394, or explore our many online resources at www.jhllp.com.

Here is a brief primer on age discrimination laws in the United States and some facts about how these laws work.

1. The Age Discrimination in Employment Act of 1967 -- also known as the ADEA, this law shields employees and job applicants aged 40 years old and older from being discriminated against in "hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment." Not all applicants or employees are protected by this act. The Equal Employment Opportunity Commission (EEOC), a federal agency, oversees enforcement of the ADEA.
2. The Age Discrimination Act of 1975 -- outlaws discrimination 'on the basis of age in programs and activities receiving federal financial assistance.' It applies to people of all ages and does allow certain distinctions and 'factors other than age' to be used to make decisions. The Civil Rights Center enforces this act.
3. The Older Workers Benefit Protection Act of 1990 -- This changed the ADEA to bar employers from refusing to pay out benefits to certain older workers.
4. Three key federal regulations also often have bearing on age discrimination cases, according to the Department of Labor's website. These include:
• 29 CFR Part 37: This governs 'the implementation of the non discrimination and equal opportunity provisions of the workforce investment act'
• 27 CFR Part 1625: This interprets aspects of the ADEA.
• 29 CFR Part 1626: This discusses the procedures that govern the Age Discrimination Act of 1975.

Other key points:

• In general, an employer may not use age limitations or preferences in advertisements unless there are so called "bona fide occupational qualifications."

• Employers may ask a job applicant for his or her age or date of birth, but he or she can only do so for purposes that are not prohibited by the Age Discrimination in Employment Act.

• Employees may waive rights to claims under this Act, but the terms of such waivers are strict. For instance, the waiver has to be in writing, and it must be 'in exchange for valuable consideration.'

• Employers may not retaliate against employees: for filing an age discrimination complaint; for testifying on behalf of another employee in an ADEA case; or for helping out with an investigation or with litigation pursuant to the ADEA.

For legal help with your age discrimination, harassment, or retaliation case, connect with the attorneys here at Joseph, Herzfeld, Hester, and Kirschenbaum. Our highly credentialed and results-oriented team can provide a free, no obligation consultation regarding your matter. Phone us now at (866) 348-7394, or explore our resources, philosophy, and process at www.jhllp.com.

The debate over age discrimination in the workplace has reached a boiling point. According to October 6th news reports, Sen. Patrick Leahy, Sen. Tom Harkin and other leaders of the Democratic establishment have launched actions intended to overturn a landmark Supreme Court verdict on the subject.

In the June ruling -- decided by a razor thin 5-4 margin -- the Supreme Court ruled that age discrimination claimants must meet a higher burden of proof than had been required. Previously, if a claimant could demonstrate that his or her age had been a factor in a firing or demotion, then the burden was on the employer to prove that age bias wasn't the only factor in the decision.

Writing for the majority, Justice Clarence Thomas argued that Congress had never explicitly eased the burdens of plaintiffs in cases involving the Age Discrimination and Employment Act, even though Congress HAD done so with respect to other kinds of employment discrimination cases. Therefore, reasoned the majority, the ruling to expand the burden of plaintiffs in these kinds of cases could be justified, since it did not explicitly violate the intent of lawmakers. (The Democratic committee chairmen pushing the current bill have vehemently disputed this argument.)

This epic battle between branches of government over age discrimination cases comes at a pivotal time -- age bias cases soared nearly 30 percent last year over 2007 numbers.

If you, a relative, or a coworker has been the victim of age discrimination, harassment, or retaliation at the workplace, connect with the lawyers at Joseph, Herzfeld, Hester & Kirschenbaum today for a free consultation regarding your rights and possibilities for legal remedies. Call (866) 348-7394 today: it's free and confidential. Or, to learn more about what sets our firm apart, visit www.jhllp.com.

According to statistics compiled by the Equal Employment Opportunity Commission (EEOC), workplace age discrimination is a growing problem. In 2007, the EEOC documented over 19,000 cases - the highest number in a dozen years. In 2008, the number of age discrimination cases jumped again -- by more than 5,500 -- to 24,582. To help to identify and stop such discrimination at your workplace, here are 6 key tips:

1. Know the law.

Knowledge is power when it comes to defending your rights at work. The 1967 Age Discrimination and Employment Act made it illegal in the United States for employers to discriminate against employees ages 40 and above with respect to benefits, lay-offs, promotions, and hiring.

2. Identify and change patterns of bad behavior before they become a problem.

An older worker who labors in an environment dominated by mostly young people may naturally be segregated from the pack. Numerous group behavior studies have demonstrated that minorities organically become targets for harassment and discrimination. But if you assertively act to defend your rights and interests upfront, you may diffuse the situation. Challenge stereotypes. Don't ignore jokes or mean comments about your age. Make it clear that colleagues who collude with harassment or discrimination are a substantial part of the problem. It's not just the "workplace bully" who's the problem -- it's the workplace bully AND his/her enablers.

3. Gather evidence of the discrimination.

Archive documents, e-mails, conversations, performance reviews and other evidence that might support your age discrimination claim. For instance, let's say a supervisor forwarded you an e-mail that made veiled or even overt implications about how old people forget things. Print, time and date stamp, and archive that email as potential evidence.

4. Make a good faith effort to resolve the problem internally.

Your company's human resources department or your immediate supervisor may be able to stop discrimination or harassment before it becomes a serious problem.

5. Don't wait for the statute of limitations to elapse on a claim.

According to the 1967 Age Discrimination and Employment Act (referenced above) you must contact the EEOC within 180 days of an alleged violation. (That said, in some states, you may have up to 300 days to do so, depending on the circumstances.)

6. Consider retaining an attorney.

Employment law is a complicated field. You may not even be aware of the various resources available to you under the law. For a free, confidential, and comprehensive evaluation of your age discrimination or harassment situation, connect with the representatives here at Joseph, Herzfeld, Hester & Kirschenbaum at www.jhllp.com. You may also call (866) 348-7394.

Attorney Donald Dobkin has sued the University of Illinois for age discrimination in response to the university's decision to deny him a position on the faculty. The 56 year-old Dobkin, who's practiced law for over 25 years, heads up Michigan's biggest independent law firm and boasts impressive credentials, such as a JD from Northwestern University and a CV that includes many publications in leading law journals. Although university officials acknowledged his "impressive academic and professional record," they opted to hire a person under the age of 40 for the position.

According to The Chicago Tribune, Dobkin has alleged that Iowa's College of Law has not hired a faculty member over the age of 40 for over a decade. Dobkin seeks remuneration for wages lost as well as an opportunity to take the teaching position at the law school. He filed suit on August 19, 2009 through the US District Court in Davenport, Iowa; as of this writing, it's unclear precisely how University will respond to the action or to his demands.

Age discrimination is a perennial problem at many academic institutions - in both directions. Younger, non-tenured professors often complain that older faculty -- who no longer contribute actively to the research community -- can nevertheless maintain their positions due to the tenure system. Conversely, employment discrimination scenarios like the one alleged by Attorney Dobkin can also roil academic institutions.

If you or a family member has been discriminated against at the workplace on the basis of your age, race, creed, religion, or disability; or if you've been subjected to retaliation for filing a discrimination complaint, the attorneys here at Joseph, Herzfeld, Hester & Kirschenbaum LLP may be able to help. Find out more about our practice here at www.jhllp.com, or phone us at (866) 348-7394 for immediate assistance.

AT&T, the biggest telecommunications company in the US, has found itself on the business end of an age discrimination lawsuit. The US Equal Employment Opportunity Commission (EEOC) launched the suit against AT&T in response to the company's practice of prohibiting the rehiring of former employees who had opted for early retirement. EEOC attorneys allege that this policy makes it much more difficult for older employees to get rehired.

A spokesman for the EEOC, Louis Graziano, said that AT&T's policy discriminated against a class of workers that theoretically could number as much as 50,000 (the total number of people who opted for the early retirement program). The actual number of people who might have been discriminated against should be much less than that, however, since only people who subsequently sought to be rehired by AT&T would have been impacted.

After the EEOC filed the suit in US District Court in Manhattan, an AT&T spokesman named Michael Coe responded that the company "makes diversity and inclusion a top priority" and does not tolerate "discrimination of any sort, including that based on age..." Coe did not make any comments regarding the specific allegations of the suit.

Age discrimination is illegal under US law - whether it's being perpetrated by a giant multinational corporation such as AT&T or by a small business owner with only a handful of employees. If you are older than 40, and you believe that your employer denied you compensation or advancement or otherwise mistreated or harassed you based on your age, the attorneys at Joseph, Herzfeld, Hester & Kirschenbaum LLP can advise you. Call (866) 348-7394 or email us through www.jhllp.com today to speak with an attorney about your age discrimination matter ASAP. All consultations are free, thorough, and no obligation.

The Wisconsin Supreme Court ruled on Tuesday, July 21 that a claim brought by a former Catholic school employee (Wendy Ostlund) for age discrimination was not valid due to the fact that she had worked at a religious institution.

The court overturned the rulings of two lower courts by a razor sharp verdict of 4 to 3. The lower courts sided with Ostlund, who claimed that she had been terminated illegally during a 2002 downsizing.

The claimant's attorney expressed dismay at the ruling, claiming that the Supreme Court ignored a wealth of precedence that seemed to support the view that religious institutions must abide by fair employment practices for positions that are not ministerial and that are largely secular in nature. A Justice speaking for the Supreme Court's majority disagreed, pointing to Wisconsin's Free Exercise and Freedom of Conscious clauses; he suggested that these laws allow certain religious organizations exemption from some employment discrimination claims.

This case goes to show that, even when age discrimination or religious discrimination claims may seem supported by precedence, there is no predicting precisely how an appellate court may rule. That's why it is so important for claimants to retain top tier employment discrimination attorneys before moving forward with legal action. The good news is that, if you've been the victim of age, gender, or religious discrimination at your job, the attorneys of Joesph, Herzfeld, Hester & Kirschenbaum may be able to help. Book a confidential consultation with us today by phoning 1-866-348-7394, or learn more about the firm's capabilities, successes, and philosophy at www.jhllp.com.

The U.S Supreme Court decided the age discrimination case of Gross v. FBL Financial Services, Inc on Thursday with a five to four ruling in favor of the defendant. The majority opinion of the Court ruled that claimants in age discrimination cases must show direct evidence that their age played a significant role in their employers' decisions.

Speaking for the majority, Justice Clarence Thomas wrote: "even if age can be proven to be a partially motivating factor for a business's decision, age discrimination claimants must meet a higher burden of persuasion." Speaking for the minority, Justice John Stevens suggested that the majority was essentially attempting to legislate from the bench by disregarding a 1991 amendment to federal civil rights laws.

Facts of the Case

The discrimination matter debated concerns an executive at FBL Financial Group named Jack Gross, who had allegedly been passed over for promotion in favor of a younger employee who had once been his subordinate. Pursuant to the Age Discrimination Employment Act, Mr. Gross sued his employer and was awarded $46,945 by a federal jury. The company claimed that Mr. Gross had been demoted from Director to Coordinator due to in-company restructuring.

Employer advocacy organizations, such as the National Federation of Independent Business, have cheered the high court's decision. Speaking on behalf of disappointed labor advocates, Senator Patrick Leahy of Vermont argued that the court's ruling disregarded legislative precedent -- most notably the Lilly Ledbetter Pay Discrimination Act that Congress passed earlier this year.

If you or a family member is facing an age discrimination matter at a workplace, the law firm of Joseph, Herzfeld, Hester & Kirschenbaum LLP may be able to provide strategic assistance. Book a free consultation with us today to explore your options.

An employment discrimination case with potentially profound implications for the state of Indiana has taken a new twist. For the past 5 years, Eli Lilly and Company, Indianapolis's largest employer (12,000 employees in the state and many more thousands elsewhere around the country) has been dogged by workplace discrimination allegations. On Tuesday, June 9th, the NAACP asked a presiding federal judge to grant class action status to more than one hundred current and past Lilly employees who claim they've been victims of racial discrimination.

Retaliation or Appropriate Termination?

The legal battle began in 2004, when a woman named Cassandra Welch complained to the company's HR department about harassment. According to Ms. Welch's account, the company did not respond appropriately. Ms. Welch subsequently found a black doll with a noose around its neck at work, and she was later fired in retaliation for complaining. The company has denied firing Welch for retaliation and has insisted that she was let go because she forged emails.

Others Complain

Shortly after Ms. Welch lost her job, workers like Joy Mason and Kelly French voiced similar complaints about harassment and race discrimination at Lilly. These women complained that they had been passed over for promotion by less qualified applicants and they had not received pay concomitant with the jobs they were doing.

How many more?

All told, more than 2,000 African Americans currently work at or have worked at Eli Lilly and Company. At least a hundred have joined in the potential class action suit. The drug manufacturer stands by its argument that the company does not tolerate and has not tolerated discrimination in any form at its workplaces and that it offers equal pay and promotion opportunities to all employees. Given the lawsuit's current size and Lilly's prominent community stature, the outcome of this case may have significant cultural and economic consequences for the city of Indianapolis.

If you believe that your company has perpetrated race based or national origin based discrimination, the law firm of Joseph, Herzfeld, Hester & Kirschenbaum LLP can provide guidance. Please review our site or call our team for a free consultation.

A former fashion director at the men's magazine Playboy has filed a high-profile suit against his former employer in Manhattan Supreme Court, seeking damages of $4 million for age and sex discrimination. The plaintiff, a man named Joseph DeAcetis, alleges that his boss, the director of Playboy's editorial section, teased and criticized him for his "old" appearance and sexual orientation. Among the slights alleged:

•    The director made fun of DeAcetis for liking baseball, claiming that baseball is not a sport that "girls" typically enjoy.

•    After DeAcetis did an interview on a local TV station to plug Playboy, he returned to the office to suffer an avalanche of abuse from his boss, who said he looked "old" on TV and that his "gray hair" was off-putting and projected the wrong attitude for the brand.

•    DeAcetis worked for Playboy since 2000; he'd been on staff since 2005. But despite receiving high praise from Playboy's CEO and introducing numerous innovative concepts, he found his work responsibilities methodically stripped away by his boss and handed to younger, more inexperienced people.

•    Two months after appearing on the aforementioned TV show, DeAcetis was fired. He claims he lost his job because of his age and his homosexuality.

The plaintiff is seeking damages for emotional distress and anguish as well as for back pay owed. A Playboy representative provided a statement to reporters that the magazine would conduct an internal investigation to sort out the facts.

Discrimination and retaliation at fashion magazines seems to be a hot button issue of late. Consider, for instance, the TV series Ugly Betty and Mad Men -- both of which portray the lives of cutthroat strivers at high-profile magazine/ad firms. The Devil Wears Prada - a bestselling book later adapted into a popular movie starring Meryl Streep - depicted a fictional fashion magazine editor as the ultimate "Boss From Hell."

Perhaps one reason why these fictional exposes of the magazine/ad industries appeal to the zeitgeist is that they tap into something real that's going on. In other words, perhaps these industries promote a mindset that cultivates age and sex discrimination.

Older Americans (55 years plus) have historically often found themselves at disadvantage on the job market. Not only must older Americans contend with age related job discrimination, but they also have less time to wrangle with retirement related financial concerns. In addition, given that the U.S. boasts such a youth centric culture, elderly Americans often find it difficult to navigate the cultural mores of the modern workplace.

Experts in the field of work discrimination fear that more and more elderly Americans will find themselves out of work, out of place, and out of luck because of the increasing role that technology has been playing in shaping business processes. In the past five years, for instance, the world of e-commerce and social networking has exploded. YouTube, Facebook, LinkedIn, and MySpace may seem unfamiliar to members of the so-called "Greatest Generation." Technologies like Twitter, RSS, and Skype, moreover, may seem utterly foreign.

Even more discouraging is the fact that employers and clients seem to be leaning on these technologies and communication modes more and more. A "hot to trot" 34 year old boss at a telecom company may be loathe to even consider résumés of applicants who are older than 50 just because she may fear that they won't possess an adequate understanding of the cultural business landscape.

To prevent age related job discrimination or harassment from impeding opportunities, older Americans would do well to become at least proficient in relevant technologies. At risk individuals should also study up on their rights as employees and be prepared to strike back against overt discrimination or violations of equal opportunity laws.