Posts Tagged ‘2013 Triad Employment Law’

Woman is Fired for Being Old and Ugly – A Win for the EEOC

Tuesday, October 8th, 2013

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2013 Triad Employment Law Update.

Robin Shea

Robin Shea, Partner at Constangy, Brooks & Smith

Let’s say your CEO fires a 53-year-old woman and says he’s doing it because she’s “old and ugly.”

If she finds out about it, can she sue for age discrimination?

My guess is 100 percent of you would say, “What are you, stupid? Of course she can!”

The following is a true story: A property management company in Oklahoma hired a new CEO. After his first month on the job, he terminated seven employees, as new CEOs tend to do. The next day, he fired an eighth — a 53-year-old property manager named Ms. Strength.  According to three people, the CEO privately told them that he terminated Ms. Strength because she was “old and ugly” and that he wanted someone “younger and prettier” in her position, and that he didn’t think she could meet potential tenants and entertain existing tenants after work because she was “older.” (The CEO denies having made any of these comments.)

Oh, and the company gave Ms. Strength a letter saying her job had been eliminated, when it actually hadn’t.

As you can imagine, the lawyers at the Equal Employment Opportunity Commission, having taken a few hits recently, found the case somewhat attractive from a litigation standpoint. In fact, they were like a wild dog smelling red meat.

So the EEOC sued the company on behalf of Ms. Strength for age discrimination, and the company filed a motion for summary judgment. You have to admit, that took nerve. Actually, it probably wasn’t nerve so much as desperation. Juries are notorious for sympathizing with older workers, and the company did not want this case to get to a jury.

I don’t know if there is anything called a “Hail Mary” motion for summary judgment, but there should be, and I believe this was one.

What in the world did the company argue? OK, I’m not saying these are good arguments, but here is what they said:

1. The Age Discrimination in Employment Act requires the plaintiff to show that “but for” a discriminatory motive, she would not have been fired or otherwise subjected to adverse employment action. Assuming that the CEO really made these comments (as the company was required to do at the summary judgment stage), he said that Ms. Strength was fired not only because she was old, but also because she was ugly. Therefore, age discrimination was not his only motivation — “looksism” was the other. And since he had two motives, the company should get summary judgment on the age discrimination claim.

Of course, the court shot this down. First, the court said, just because age has to be the “but for” cause, that doesn’t mean that it has to be the only cause. It’s more like the straw that broke the camel’s back. You can have other causes, but if the discriminatory cause is the one that puts the camel in traction, then the discriminatory cause is still the “but for” cause. My esteemed colleague Donna Ballman pointed this out not too long ago, after the Supreme Court’s decision requiring “but for” causation in retaliation cases.

Second, the court said, the CEO may have thought Ms. Strength was “ugly” only because she was “old.” You know the type, amIrightoramIright?

Strike one!

2. Then the company’s lawyers got even more creative. They were like, Oh, well, even if we have to go to trial on the age discrimination claim, the EEOC shouldn’t be allowed to get more than $100,000 because Ms. Strength admitted in her deposition that she would take $100,000.

(Under the ADEA, a prevailing plaintiff can recover back pay and benefits, front pay and benefits, plus that much again as liquidated damages, and — assuming she had her own attorney — attorneys’ fees, expert witness fees, and costs. In all likelihood, for a 53-year-old with a responsible position, significantly more than $100,000.)

Here’s what happened in the deposition. The company’s lawyer asked her, “If I could write a check to you, what amount would make you happy?” After some objections and argument between the lawyers, Ms. Strength said, “To be treated fairly . . ..” The lawyer said, “I’m asking for a figure. I want to know the amount. . . . You walk out of here today and have a Merry Christmas, what amount would that be?” Ms. Strength said, “100,000.”

Settlement negotiations are normally inadmissible. The EEOC (correctly, in my opinion) said that this was an inadmissible “settlement negotiation,” and also that the EEOC wasn’t limited to seeking what Ms. Strength might have accepted. The court agreed.

Strike two!

3. Finally, both the EEOC and the company moved for summary judgment on Ms. Strength’s alleged failure to mitigate her damages. The court granted the EEOC’s motion and denied the company’s.

(Does that make four strikes? And have I mixed enough metaphors in this post?)

I think the moral of this story if you’re an employer, and especially if you’re in HR or in-house counsel, is to do your best to make sure your executives don’t do stupid things, like firing people because they’re over the age of 50. (Or, for that matter, because they’re ugly — appearance discrimination is against the law in many jurisdictions, plus it’s mean to pick on people just because they’re homely.) Once somebody at the CEO level (allegedly) pulls a stunt like this, there is very little that you can do as a company except to give the plaintiff that check for $100 grand fast, before she changes her mind.

Robin Shea is presenting at the 2013 Triad Employment Law Update on November 5th at the Grandover Resort in Greensboro. In addition to receiving best practices for hiring and firing employees, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

NC Unemployment Law—Guidelines and Recommendations for Correctly Filing Attached Claims

Thursday, September 12th, 2013

In Tuesday’s blog post, George Ports, CAI’s Senior Executive in Government Relations and Senior Advisor on CAI’s Advice and Counsel Team, imparted important information about North Carolina’s Unemployment Law dealing with attached claims. Check out part 1 here: http://bit.ly/18cOU0X. Read part 2, which focuses on guidelines and recommendations for filing attached claims, below.

George PortsProcedures for Filing Attached Claims

  • Claims are filed electronically.
  • Employer files are created by the DES for attached claims.
  • The employer will receive an electronic response from the DES with the amount necessary to cover the cost of the attached claims (amount will only be for the projected number of weeks necessary).
  • If the employer’s filing efforts are rejected due to a negative balance, a box “click here to make payment” appears and an amount should be displayed necessary to bring the employer’s account to zero and payment amount necessary to cover for the cost of the attached claims.

If employer is unsuccessful with the electronic filing, the DES tax department should be contacted.

  • Once the employer’s file is created, the employer at the end of each week, opens the file and confirms or edits the number of hours worked and wages earned for that week so that the DES can calculate the amount of eligible unemployment benefits due to the employee.

(All payments to the DES for attached claims can be made by “e-checks” or by credit cards.)

 

Recommendations/ Options for Employers

Due to the limitations of one claim per year per employee and the requirement that each claim filed satisfy a week’s waiting period.

  • If slow periods of work are anticipated, reduce the hours of the regular scheduled work week (example: 40 hours to 32 hours—60% of 32 = 19.2 hours.  Employees who work at least this amount would not be eligible for attached claims but would receive some wages.  The use of attached claims would be reserved for unexpected downturns when it is necessary to implement a temporary reduction in force).  Reduced regular work weeks should be for a significant consecutive period.
  • Employers could delay filing attached claims until multiple weeks of downturns are expected. 
  • If attached claims have been exhausted and subsequent reductions in force are necessary, permanently lay off employees with the understanding that if they are recalled, they will be paid a signing bonus (This is an incentive for employees to return even if they have secured other employment).

 

**IMPORTANT UPDATE**

The following is an excerpt from Assistant Secretary of Commerce Dale Folwell’s memorandum dated September 13, 2013 giving an update on complying with House Bill 4 including another option for employees and employers in light of the restrictions placed on attached claims:

Attached Claims Update

An employee whose employer will not be filing attached claims may file a claim for themselves.

Employees must meet the following requirements:

• File the initial claim and then file weekly certifications for each week benefits are requested.

• Report all earnings and payments.

• Be able and available for work during each week filed.

• Be actively seeking work during each week filed (regardless of hours worked).

Further information is provided in: NCUI 517Z: Information about Unemployment Insurance for Totally Separated Workers (located at www.ncesc.com). The NC Division of Employment Security understands that the employee is not “TOTALLY SEPARATED”, however for any week an individual files a claim for unemployment benefits, DES must determine whether the requirements listed above are met.

Employers will be sent a Form NCUI 500AB each time an individual files a claim for unemployment insurance benefits. Employers are responsible for providing accurate information to include: layoff and return to work dates and; the correct reason why the individual is not working (including temporary layoff). Incorrect responses such as (still employed) can delay benefit payments to temporarily laid off individuals.

 

For more information on NC’s Unemployment Law and other updates in state and federal laws, make sure to attend the 2013 Triad Employment Law Update on November 5 at the Grandover Resort in Greensboro. Knowledgeable attorneys from Constangy, Brooks and Smith, LLP will provide you with information on several topics, including: wage and hour; I-9 compliance; immigration; off-duty conduct; health care reform; hiring practices; terminations; and the NLRB. Visit www.capital.org/triadlaw to register and find detailed information on conference presentations.