Age bias claims are hard to prove, right? I mean an employee has to show that age was pretty much the only reason s/he suffered discrimination or s/he loses, right? Well, guess what? While that is often true under federal law, that’s not always true. I regularly tell clients and prospective clients to consult with their friendly local employment counsel for a reason: They are in the best position to know if any state or local laws apply to a company’s situation.
Take Rinksky v Cushman & Wakefield, Inc, for example. Here’s what went down:
Mr. Yuri Rinsky worked out of Cushman & Wakefield’s New York City office as a systems analyst and software engineer, often working remotely. Mr. Rinsky’s managing director made a verbal request to transfer to C&W’s Miami office, which C&W approved. Since Mr. Rinsky intended to move to Boston, he made an oral request for a transfer to C&W’s Boston office. According to Rinsky, his boss approved the transfer, telling him that the CIO would be in touch with him about arranging a cubicle for him in Boston. Rinsky then proceeded with his move to Boston. Sounds good, no? If things had ended there, then there wouldn’t have been a problem. But, of course, they didn’t. C&W fired Rinsky. Wait. What? Why would they approve his transfer and then fire him? According to C&W, he left without notifying HR. Again, what? Didn’t the boss approve the transfer? Well, the boss later testified that he told Rinsky the request needed approval from other managers, which could take months. Mr. Rinsky, who was 63 years old at the time of his termination, sued, claiming age discrimination.
Is that all? Would that be enough to sustain an age discrimination claim? Probably not, but there’s more. (You know I wouldn’t bother writing about this case if there wasn’t, right?) Mr. Rinsky was the oldest employee in his department, and he was replaced with a much younger employee. That’s still not all, though. The District Court (federal trial court) noted that the evidence suggested that C&W led Mr. Rinsky “to think that he had permission to transfer, waited until he moved to Boston and his replacement was trained, and then used the move as a pretense to fire him.” The jury agreed with Rinsky and awarded him a respectable $1.27 million. C&W appealed.
What was C&W’s argument? C&W argued that age was at most only one factor and that Rinsky had to meet the “but for” standard, under New York State Law i.e. but for his age, he wouldn’t have been fired. (Yes, New York State law, mirrors the US Supreme Court’s interpretation of the federal Age Discrimination in Employment Act. Yes, the US Supreme Court in 2009 adopted the “but for standard” in interpreting claims under the ADEA.). There’s only one problem with that argument: Rinsky worked out of C&W’s New York City office. OK, but that’s in NY State. Yes, but New York City’s Human Rights Law allows proof of mixed motive. In other words, to win an age discrimination claim under the New York City Human Rights Law, an employee need only prove that age discrimination was a substantial factor in the adverse employment action. The court found here that Rinsky had in fact done so.
C&W petitioned the US Supreme Court to hear the case, arguing among other things that the First Circuit Court of Appeals erred in applying New York City’s Human Rights Law, and that the punitive damages award against it should have been governed by the “clear and convincing” evidence standard rather than “preponderance of the evidence” standard it applied. Huh? Preponderance of the evidence means that the evidence proved it was more than 50% likely that the plaintiff’s allegations are true. Clear and convincing evidence is a higher standard. Those are some possibly interesting, technical, legal arguments that won’t be heard though, because the US Supreme Court denied C&W’s petition. So, for now, the First Circuit’s ruling stands. You can find the ruling here if you are interested.
OK, what does this all mean to the rest of us? Some states, cities and counties have their own anti-discrimination laws. Generally speaking those laws will provide greater protection to employees than federal laws. If you have employees working in those locations you need to comply with those laws as well, not just federal laws, and not only laws where your company headquarters are located. You must be aware of and comply with applicable laws in any location in which you have employees working. This is why you need to consult your friendly local employment counsel. In this case, New York City’s Human Rights Law provided greater protection to an employee with an age discrimination claim. So don’t assume that employees alleging age discrimination will automatically lose as long as you claim other unrelated motives regarding your employment practices.
(NOTE: Congress in February introduced a bipartisan bill known as the “Protecting Older Workers Against Discrimination Act” (POWADA) which would overturn the US Supreme Court’s 2009 ruling that adopted the “but for” standard in ADEA claims. It’s still pending and may be for a while, but if it passes, then we may see more cases like this one.)
That’s all I’ve got for now. See you next week.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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