In our Unit 3 assignment, you will cite statistics that are associated with age, weight, and sexual orientation discrimination in the workplace and describe the growi

Assignment for HRM 305

Age, Weight, and Sexual Orientation

Overview:

In our Unit 3 assignment, you will cite statistics that are associated with age, weight, and sexual orientation discrimination in the workplace and describe the growing trend of weight discrimination in today’s workplace.

Assignment Details:

Write a 1,000-word paper. Provide a separate overview for each type of discrimination: age, weight, and sexual orientation. Then, answer the question, “Can we eliminate these types of discrimination from the workplace? Be sure to cite statistics that support your findings.

Submission Requirements:

· APA format is required, which includes:

· Title page

· 12pt. font in Times New Roman and double-spaced

· Reference page, with in-text citations

· Entire paper length should be 1,000 words or more

· Include an introduction and conclusion (included in word count!)

Refer to the next page for the grading rubric.

Students: Be sure to read the criteria, by which your paper will be evaluated, before you write, and again after you write.

Grading Rubric for the ‘Age, Weight, and Sexual Orientation’ Assignment

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circumstantial evidence and age discrimination labor law for supervisors

Mary-Kathryn Zachary, J.D.

The Age Discrimination in Employment Act (ADEA) was

designed to protect individuals who are 40 and over from workplace discrimination. This group of workers traditionally had been significantly impacted by ageism and cost -cutting measures in business. Sometimes the company behavior consisted of letting an older employee go and replacing him or her with a younger employee who could be hired at a lower salar y. Sometimes the behavior consisted of not hiring an older person or of terminating one because of a perception that an older worker was less willing to take orders, was less willing to change, and was less productive than a younger worker. Older workers were denied training and promotion opportunities because of a concern they would retire before the company would benefit.

Thus, older workers were much more likely than younger ones to be terminated because of age discrimination and much less likely to be hired because of such discrimination. Age discrimination cases can take the form of refusal to hire, workplace harassment, differences in terms and conditions of employment, discharge, and unlawful litigation waivers. Only companies who employ 20 or more workers are subject to the provisions of the ADEA, and these companies have several defenses available to them. A company may argue that an individual was not hired because they were not as qualified. It may contend that a worker was terminated because of financial exigency and not age. It may argue that a discharged employee was let go because of a reorganization, poor performance, or negative attitude.

Recent sur veys and reports indicate that workers plan to stay in the workforce much longer than in earlier years. Economic reasons and medical advances have contributed to older workers’ decisions to continue working. These employees fall into the protected categor y under the ADEA. A recent case, Mullin v. Temco Machinery, Inc., 120 FEP Cases 494 (7th Cir. 2013) provides an illustration of the arguments that can come up in an age discrimination case. The case was before the Seventh Circuit Court of Appeals on an appeal from a grant of summary judgment in favor of the defendant company. In such a review, the appellate court is required to view the evidence in the light most favorable to the non- moving party, in this case the plaintiff. If any genuine question

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for supervisors

of material fact exists that could result in a decision in favor of the non-moving party, the case must go on to trial. The following is the court’s discussion of the evidence presented. At the actual trial, the jury or the judge in a non-jury case would decide the credibility of evidence. The 7th Circuit reversed the grant of summary judgment and remanded the case back to the district court for trial. In doing so, it provided a valuable discussion of the types of circumstantial evidence that can be important in determining company liability in an age discrimination case. The plaintiff, John Mullin, II, began working as a sales associate for Midwest Fire & Safety in 1990. At that time, Midwest was an authorized dealer for a company making custom fire trucks and rescue equipment. Mullin was one of four to six sales associates for the state of Indiana during the time of his employment. As a sales associate, Mullin was responsible for a territory covering part of Indiana and was responsible for about 250 client accounts. He sold fire trucks and equipment, called on customers, attended sales meetings, and went to functions of the fire departments within his territory. In 2006, Temco acquired Midwest . Most of Temco’s sales associates were over 40 because of the nature of the job. The sales associate position required a great deal of industry knowledge and the products sold. Although in 2006 or 2007 Mullin had one account taken away due to a complaint, in 2008 and

2009 he was Temco’s Salesman of the Year. In fact, he was responsible for 42% of the fire trucks sold in 2008 (56% of the total profit) and 40% of those sold in 2009 (52% of the total profit). He was also the oldest of the salespersons. In November 2009, Temco hired a new Vice President and General Manager of the Indiana sales division. One of his tasks was to evaluate the division with the goal of improving performance. He instituted changes requiring salespersons to attend a weekly meeting, to develop a list of higher and lower value targets with the goal of pursuing the higher value targets, and to compile weekly call and contact lists. Varying accounts exist of Mullin’s compliance with the new policies. In May 2010, Temco made a number of sales personnel changes in Indiana. On May 5, it terminated a salesperson in his 50’s. The same day the company hired a 24 year old who was told to report to work on May 14 as a full time sales associate. Then a 29 year old was hired as a part time sales associate. The company noted in court documents that both men were inexperienced and young. Neither of the two new hires had any background in the sale of fire trucks. The hiring of these two sales associates was followed by the discharge of Mullin on May 13. Temco’s CEO told Mullin he was being fired because the company was paying him too much money for the sales he was producing. The two new sales associates attended

a manufacturer’s sales meeting on May 14—a meeting that Mullin was supposed to have attended. Mullin filed a claim based on age discrimination with the Equal Employment Opportunity Commission and subsequently filed suit in federal court. Temco responded that Mullin was fired for poor performance. The district court granted summary judgment for Temco, and Mullin appealed to the Seventh Circuit. Temco offered several performance-related arguments in support of its discharge of Mullin. They were the following. Mullin’s productivity was declining. Mullin missed sales meetings. Mullin refused to make sales calls or call on existing accounts as directed. Mullin lost sales. Mullin inappropriately communicated with a competitor through email. Mullin was late with his list of contacts/calls. Mullin was a no- show for a plant tour arranged for a client. Mullin failed to show up at two fire department events. All of the above contentions were countered by Mullin in the following manner. Mullin was still the best performing salesperson. Other salespersons also missed sales meetings, and any Mullin missed were due to necessary client visits. Other salespersons lost sales, and Mullin testified that any lost sales he experienced were caused by following the company’s explicit pricing directives. Mullin’s contact with a competitor was not inappropriate. Mullin did conduct the plant tour, a fact verified by the three people on the tour, all of

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whom described Mullin’s performance on the tour as good. Mullin did not receive an invitation to one of the fire department events and did in fact attend the other, a statement supported by members of that fire department. For a plaintiff to prevail in an age discrimination discharge case, he or she must show that age was a motivating factor for the employer’s decision and had a determining inf luence on the outcome. The plaintiff can prove an age-based case either by direct or indirect evidence. Furthermore, direct evidence can be straightforward or circumstantial. The straightforward type of evidence would be illustrated by the employer actually admitting intention to discriminate on the basis of age. Such circumstances are rare. An aggrieved employee will usually present evidence that does not directly prove discrimination but from which discrimination can be inferred. This is circumstantial evidence. Common types of circumstantial evidence offered by a plaintiff may be suspicious timing of an adverse employment action, ambiguous statements or conduct by the employer, examples of individuals outside the protected class being afforded better treatment, inconsistent or shifting reasons presented by a company for the adverse employment action, and proof that the plaintiff was qualified for the job but the job was given to someone outside the protected class based on pretextual reasons. Applying the above analysis to the instant case, the Seventh Circuit concluded that Mullin had provided

enough evidence to convince a reasonable jury that he was the victim of unlawful age discrimination. He had offered enough circumstantial evidence, in particular, suspicious timing and ambiguous statements, to satisfy the court. Each of the reasons given by the company for his discharge was contested and possibly even inaccurate. Thus, the case merited continuing to trial. The grant of summary judgment for the defendant was inappropriate. The f lurry of sales personnel actions in May provided the backdrop for the suspicious timing argument. The court commented on the following. Within a period of two weeks, two young, inexperienced men outside the protected class had been hired, and two older, experienced, and largely successful sales associates had been terminated, with the younger men assigned the work formerly performed by Mullin. These personnel decisions were particularly surprising given that the company vice president had stated that the best period in a salesperson’s l ife is generally between 45 and 65 and that such employees were sought out. On top of that, although Temco had told Mullin that f inancial considerations motivated the termination (i.e., his salary was not justified by his sales), the company went on to hire two younger workers for close to what Mullin, the incumbent salesperson of the year, was earning. With respect to ambiguous statements, the

appellate court noted that company management mention of youth in the context of its hiring decisions was at the least, ambiguous in its meaning, and clearly indicated that age was part of the thought process used in the hiring decisions. Mullin had also argued that the company’s shifting and inconsistent reasons for his termination proved that they were really a pretext for unlawful discrimination. To be successful with an argument that proffered reasons are really a pretext for discrimination, a plaintiff in an age-based case must either show that it is more likely than not that a discriminatory as opposed to nondiscriminatory reason motivated an adverse employment action, or that the employer’s reason for the adverse action is simply not believable. As paraphrased by the court, the plaintiff must show that the reasons given for the adverse employment action are “phony” excuses. If a company changes the reasons given for an action, the shifting explanations can indicate pretext. Here, Mullin had offered evidence that each reason given by the defendant company for discharging him was contested, inaccurate, or both. Credibility issues had been successfully raised by the plaintiff. Thus, the case should proceed to trial and the issues in question decided by a jury. Reviewing each of the reasons given by the defendant for its decision to discharge Mullin, the appellate court presented the question raised. First, the court discussed the financial reason

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given. The company had told Mullin that from a financial standpoint, his sales did not justify his salary; however, Mullin was the top salesperson, the company made no offer to reduce his salary and keep him on, and it hired two inexperienced individuals at almost the same salary. Mullin was earning $56,000. The two new employees were earning $48,000 (the part-time employee) and $42,000 (the full- time employee). Next, the company maintained that the two new hires did not replace Mullin; rather his sales territory was divided among three people, with the third between a 65 year old employee. The 65 year old employee was also use by the company to compute the average age of its sales associates. However, the court observed, the 65 year old was a handyman, not a sales associate, and it was possible that the company had included him as a sales associate to make the average age of its sales force seem higher than it actually was. The company had also argued that Mullin had not fulfilled his responsibilities when he failed to attend three client events. The court noted that Mullin had disputed the company’s version with respect to each incident and had offered supporting testimony for two of them. It reasoned that enough inaccuracies could make the jury question the company’s credibility with respect to the reasons given for the plaintiff’s discharge. The defendant further offered lost sales by the plaintiff as a reason for his termination. However, the court noted, the company had admitted

that other sales associates had lost sales. Mullin had presented evidence that it was the company’s pricing directives that resulted in any lost sales attributed to him. The existence of a genuine dispute about the lost sales justified this issue proceeding to trial for determination. Temco contended that Mullin was not performing at an appropriate level. Yet, the court observed, Mullin had been the top salesperson for two years and was in the lead again at the time of his termination. The company had discounted this achievement by stating that Mullin had the most desirable territory, a contention disputed by Mullin. Again, this was a genuine issue for determination by a jury. The employer also argued that Mullin did not submit his contacts/ call lists on time. The court stated that Mullin had denied this. Furthermore, although two emails between company officials indicated that this list might have been late on those particular occasions, the company had destroyed its call reports. Thus, there were no call reports to support their allegations or to enable Mullin to show that he was in compliance or to compare his behavior with that of the other sales associates. A question also existed about the timing of the destruction of the call reports. Additionally, the company complained that Mullin had not attended ever y weekly sales meeting. The court noted that Mullin had rebutted this allegation by stating that other sales associates

sometimes missed the meetings, he was making necessary visits to clients during the meetings he missed, and the company had never raised the issue of his attendance with him. The Seventh Circuit concluded that this factual dispute should also go to trial. Finally, with respect to Temco’s allegation that Mullin engaged in an inappropriate email communication with a competitor, the court pointed out that the company had not produced a copy of that email. Therefore, at that point in the litigation, the court would accept Mullin’s argument that he had not engaged in inappropriate communications. The Seventh Circuit concluded by stating that no single example of age discrimination offered by the plaintiff would be sufficient by itself to thwart the defendant’s motion for summary judgment. However, taken together, they did provide “a string of questionable conduct, from the suspicious timing of personnel decisions to ambiguous statements about age to multiple seemingly inaccurate al legations.” The plaintiff had genuinely disputed each reason given by Temco for his termination. Therefore, multiple material factual determinations remained for the jury. Although the ultimate outcome of this case remains to be decided, the Seventh Circuit’s discussion of the circumstantial evidence presented is extremely useful to companies. It details the kinds of factors that are important to a court in deciding if unlawful age discrimination has actually occurred or if a company has justifiable reasons for its actions.

SV

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IN A NUTSHELL

(1.) The Age Discrimination in Employment Act prohibits workplace discrimination based on age against those employees who are 40 and over by companies with at least 20 employees.

(2.) To win an age-based case, an individual has to show that age was a motivating reason for an adverse employment action and directly influenced the action.

(3.) An aggrieved worker may use direct or circumstantial evidence to prove an age discrimination case.

(4.) Circumstantial evidence may include suspicious timing, shifting or inconsistent reasons given for an adverse employment action, ambiguous statements and behavior on behalf of the defendant company, and differential treatment being given to individuals outside the protected class.

(5.) Reasons given by a company for taking an adverse employment action may be regarded as a pretext for discrimination if it appears that they are not believable or that it is more likely than not that the adverse employment action taken was motivated by unlawful discrimination.

(6.) Managers and other supervisory employees should be aware of factors that could be considered circumstantial evidence of unlawful age discrimination and exercise care when dealing with situations involving individuals who are in the protected age classification.

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Industrial Law Journal, Vol. 35, No. 3, September 2006 � Industrial Law Society; all rights reserved. For Permissions, please email: [email protected] doi:10.1093/indlaw/dwl018

Justifying Age Discrimination

JONATHAN SWIFT*

ABSTRACT

The characteristics of age discrimination as provided for in the Employment Equality (Age) Discrimination Regulations set it apart from existing anti-discrimination schemes. The ambit of the Regulations is limited to the employment field. Within this area, the legislation does not simply seek to identify a characteristic of a specific minority group and then remove that factor from the decision-making process. Instead, working from a quality common to all (age), the Regulations seek only to prevent reliance on it for pur- poses that are ‘illegitimate’ or if the consequences of doing so are ‘disproportionate’. This is necessary: first because the Regulations do not seek merely to protect discrete age groups, and in practice the interests of persons of different age may well be in conflict; secondly because many decision-making criteria that appear objective are in substance, age-related. In order to sort ‘bad’ discrimination from ‘good’ discrimination a notion of substantive equality must exist. The Regulations themselves give little indication of what equality should mean. There is no existing consensus from which the answer can be drawn, and the rationales that have underpinned previous anti-discrimination legislation are not easily transposed to age discrimination. The practical application of the justifica- tion defence contained in Regulation 3 will shape the substantive meaning of equality in this area. This article seeks to identify what the proper approach should be to the provi- sions of Regulation 3, and suggests that this should be derived from considerations of transparent decision-making, and the need to respect the dignity of the individual.

1. INTRODUCTION

At face value the Employment Equality (Age) Regulations1 appear to present few surprises. Some of the provisions, such as those relating to retirement and pension provision may seem complex or cumbersome, but the basic structure of the legislation is very familiar to employment lawyers, providing for prohibitions on direct discrimination, indirect discrimination, discrimination by way of har- assment, and discrimination by way of victimisation. However, if this is the

* Barrister, 11 King’s Bench Walk Chambers, London. email: [email protected] This article is based on a talk given to the Industrial Law Society in March 2006, but has its origins as long ago as 2002, in a paper for the Bar European Group annual conference. I would particularly like to thank Timothy Pitt-Payne (of 11 King’s Bench Walk Chambers), who co-authored the 2002 paper, for his comments on this article.

1 SI 2006/1031.

September 2006 Justifying Age Discrimination

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appearance given by the Age Discrimination Regulations, it is deceptive. In fact the Regulations represent a significant new step in terms of anti-discrimination schemes, and this is a step into the unknown. The unknown factor at the heart of the Regulations is that no clear view is given as to what the substantive content of equality should be in this area. To date, anti-discrimination legislation has sought to neutralise specific factors which might otherwise form part of a decision-making process. In doing so they have reflected a consensus that deci- sions should not be based on factors such as sex, race or sexuality. Although the disability discrimination provisions are more complex and fact-sensitive, they too are rooted in this basic rationale. In each of these schemes the need to remove specific considerations from the way in which decisions are taken means that the content of the equality that is required is clear. The Age Discrimination Regulations do not work from such a premise. First, they do not seek to identify a characteristic shared only by a specific minority. The Regulations are ‘age- blind’, and are not aimed only at persons in discrete age groups. Second, they do not seek to remove age from the decision-making process for all purposes. Built in not only to the definition of indirect discrimination, but also to the definition of direct discrimination is the notion that some forms of age-based decision making are justified.2 The fact that these decisions are lawful highlights uncertainty at the core of the Regulations. What form of equality are the Regulat

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