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Representing the age discrimination plaintiff: charges of age bias in the workplace are increasing as baby boomers reach their 60s. While these cases have broad jury appeal, they can challenge even seasoned trial lawyers.

Article Excerpt
He said the dean's office wanted someone younger," Adolfo Zamora testified in his 2006 age discrimination case against Florida Atlantic University. (1)

Lots of employers, it appears, want "someone younger." Forty years after Congress enacted the Age Discrimination in Employment Act (ADEA) (2)--long enough ago that an infant born on its effective date would today enjoy the protections it gives to workers 40 and older--the illegal actions it sought to address are alive and well. As baby boomers edge into their 60s, charges of discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) have increased from 15,785 in fiscal year 1997 to 19,103 in fiscal year 2007. (3)

Why are employers today so eager to say goodbye to Mr. Chips? (4) In today's bottom-line-driven economy, it's not uncommon to hear about 30- and 40-something executives who look askance at older workers' higher salaries, resent having to permit boomers to take time off to care for even-older parents, and hungrily eye workers' retirement funds as reservoirs of cash that they can invest as they will, including at times ill-advisedly in the shares of their own mismanaged companies. (5)

A number of state laws likewise prohibit age discrimination. (6) Some provide compensatory and punitive damages not available under the ADEA, which provides only back wages, liquidated damages (double back wages) for "willful" violations, and either reinstatement or "front pay."

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Common sense dictates--and many employment lawyers' trial experience shows--that age discrimination cases have broader jury appeal than any other kind of discrimination suit. A juror's ability to relate to a gender discrimination case may well be tied to his or her own gender, and racial minorities are, by definition, minorities. Most people, thankfully, do not suffer from disabilities or even have a close family member who does. Everybody, however, grows older--and has had parents, brothers, sisters, aunts, uncles, childhood neighbors, and favorite schoolteachers who have aged.

Additionally, age discrimination--or, at the very least, the perception of it--is so prevalent that hands fly up during voir dire when potential jurors are asked if they or anyone they know has been the victim of age discrimination. As one employment lawyer noted,

The fear of growing old, with the prospect of suffering through the aging process and eventual physical decline, is common to us all. Whether young, middle-aged, or old, jurors entering the jury box are influenced, at least to some degree, by such foreboding expectations. Jurors are prone to sympathize and identify with the older worker who is without a job and can expect to find few or no opportunities for other employment. (7)

Rule of three

Direct evidence is one of three ways of proving age discrimination. It is evidence that, if believed, compels the conclusion that unlawful discrimination was at play in the employer's decision-making. (8)

In some cases, employers provide direct evidence by making blatant statements of age bias. This was what happened in Zamora's case. He was a 54-year-old computer systems application coordinator for the university when he was passed up for promotion. When he asked his boss why the promotion had gone to a substantially younger person hired from the outside, he got the candid answer quoted at the start of this article.

Based on that statement, the trial court agreed to give the jury a mixed-motive, burden-shifting jury instruction. (9) This required the defendant, assuming that the jury believed Zamora, to prove by a preponderance of the evidence that it chose the younger job applicant for some reason other than age. (10)

Zamora's boss did not bring to the witness stand the same frankness he had displayed during the one-on-one conversation in an office that he obviously considered an ivy-tower cloister. Nevertheless, the jury believed Zamora, rejecting the university's contrary evidence.

While candor like this is rare, management decision-makers who would never sink to the crassness of racist or sexist slurs can be blithe about leaving paper trails of ageist comments. In Morgan v. New York Life Insurance Co., the court, in upholding a state law age discrimination verdict, quoted a senior vice president's memo about a managing partner who had been forced into retirement:

His last three years have by far been the best of his career and...

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