I need a respond to the two discussion below It need to be separate respond to both of them. I will paste them below in bold :

Post 1

Lesson 3

Carter was hired as a disc jockey by Warren, when he was aged 54. Two years later, during economic hard times for Warren’s business, Carter is laid off by Warren. Carter brings a claim of age discrimination against Warren.

Analysis

The issue for this case is whether or not Carter has a claim of age discrimination against his employer, Warren, under the Age Discrimination in Employment Act (ADEA) of 1967. Congress passed the Age Discrimination in Employment Act in 1967. ADEA prohibits employment discrimination against individuals 40 years of age or older unless age is a bona fide occupational qualification (BFOQ). The ADEA protects older workers from discrimination at all stages of the hiring process and employment relationship, from job announcements to terminations. Anyone under the age 40 years old are not able to file a claim under the Age Discrimination in Employment Act. The Act states that it is unlawful to hire or discharge any individual or discriminate against them because of the individual’s age (Bennett-Alexander and Hartman, 2019). According to the EEOC (2019), “it is unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.” In 1974, Congress expanded ADEA to include all federal, state, and local governments. The Act was designed to ensure that, whenever possible, employers use ability instead of arbitrary age limits in workplace decisions (Rothenberg and Gardner, 2011). The Equal Employment Opportunity Commission (EEOC) enforces the Act by investigating all claims of age discrimination and resolving cases where evidence suggests that employers used age as a criterion for termination, promotions, hiring, training opportunities, or any other personnel decisions (EEOC, 2009).

In Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000), Roger Reeves, a 57-year-old, brought suit against his former employer, Sanderson Plumbing Products, Inc. under the Age Discrimination in Employment Act (ADEA), alleging that his discharge from Sanderson was impermissibly based on his age. Sanderson claimed that Reeves was terminated because he was responsible for numerous timekeeping errors and misrepresentations relating to the department he oversaw. At trial, Reeves presented evidence that Sanderson’s proffered reason for his termination was pretextual. For example, there was testimony that Reeves’s supervisor, Powe Chesnut, said that Reeves was “so old he must have come over on the Mayflower.” Additionally, there was testimony that Chesnut treated Reeves the way one would treat a child who had misbehaved and that this was different from how Chesnut treated younger employees. Reeves also presented evidence that he properly maintained attendance and timekeeping records for the employees in his department. During the trial, Sanderson made two motions for judgment as a matter of law under Federal Rule of Civil Procedure 50, both of which were denied. The jury found in favor of Reeves. The court of appeals reversed and overturned the jury’s verdict, holding that Reeves had not presented enough evidence to sustain the jury’s verdict of intentional discrimination. The court of appeals found that although Reeves may have shown that Sanderson’s reason for his termination was pretextual, he had failed to show the connection between his termination and Sanderson’s discrimination. Reeves appealed, and the United States Supreme Court granted certiorari.

In order for Carter to prove a prima facie disparate treatment case of age discrimination against his employer he must show, like in Reese, that (1) he is 40 years or older, (2) he suffered an adverse employment decision, (3) he was qualified for the position, and (4) he was replaced by someone younger (Bennett-Alexander and Hartman, 2019). I am assuming that Warren employs more than 20 people and either runs a private or public business. Carter should create a written record of any documentation that suggests age discrimination and it would be a smart idea to meet with an attorney to review any information that Carter’s former employer asked him to sign before leaving his job. If Carter believes he has a case he should file a complaint with the EEOC. The anti-discrimination laws give him a limited amount of time to file a charge of discrimination. In general, Carter will need to file a charge within 180 calendar days from the day the discrimination took place. The EEOC (2019) states, “for age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law.” The deadline is not extended if only a local law prohibits age discrimination.

If Carter’s prima facie case is based on a hostile environment age harassment he will have to prove (1) he is 40 or older, (2) he was verbally or physically harassed due do his age, (3) the harassment led to effects the unreasonably interfered with his work performance and created a hostile work environment, and (4) the employer is liable (Bennett-Alexander ad Hartman, 2019). As in Reese v. Sanderson, Reeves established a prima facie case and made a substantial showing that his employer’s legitimate, non-discriminatory explanation was untrue. Carter will need to prove that his employer fired him because of age discrimination and not because of a legitimate reason. If Carter brought a disparate impact prima facie case he would have to prove that (1) a facially neutral policy was imposed by Warren, (2) the policy caused a different effect on an older group of workers and (3) no intent to discriminate is necessary (EEOC, 2019).

Carter’s employer, Warren, can protect himself from retaliation claims under Title VII and the ADEA by proving his adverse employment decisions was legitimate, non-discriminatory action. In the past the EEOC had taken the position that an employer must establish that a challenged practice was consistent with “business necessity” to justify a disparate impact on older workers (Rothenberg and Gardner, 2011). However, two U.S. Supreme Court decisions held that an employer need only prove that the challenged practice was based on a reasonable factor other than age (RFOA) which is a standard easier for employers to meet than the business necessity standard. “An employment practice is based on an RFOA if it was reasonably designed and administered to achieve a legitimate business goal” (EEOC, 2019). Once Carter has made his claim Warren then carries the burden of producing evidence of a business justification for his employment practice. Warren would have to claim that his reason was due to an economic concern or seniority conflict. Warren’s defense to Carter’s disparate treatment case would be that he had a bona fide occupational qualification for terminating Carter which may be very hard for him to prove. However, if Carter’s case goes to court and he cannot show the court that there is connection between the termination and the discrimination Warren may be able to win the case like in Reese when the case went to the appeals court. I believe that would be highly unlikely to happen. Warren needs to prove that due to his recent economic and financial situation that Carter’s termination was a business necessity for example that he was losing money.

Reese is a good example of how age discrimination in employment cases can flip depending on evidence and the judge(s) opinions. Under the disparate treatment theory, Carter must prove that he was singled out and treated differently than other employees because of his age. If he uses the disparate impact theory he will have to show that policy or practice by Warren enacted a disproportionately negative impact on older employees for example older disc jockeys. Warren may lack sufficient evidence to prove he had a non-discriminatory reason for terminating Carter unless he has documentation showing his current financial status. Warren and Carter can resolve this dispute through mediation.

My advice to Warren and all employers is that when it is time for layoff or a reduction in the company be careful not to base their decisions on age. Do not assume an older employee might be retiring soon that it is appropriate to let them go over younger employees. The best way to avoid age discrimination is to embrace a multigenerational workforce. Employers need to recognize that all employees regardless of age can contribute to the company and it’s success. When considering hiring new employees advertisements should be posted in places where everyone may look and search. To prevent age discrimination, all employers should have a well-written and detailed discrimination policy that employees must sign acknowledging that they understand the policy. This policy should be strictly enforced by everyone. Training should be made available to all employees regarding not only age discrimination but all types of discrimination.

References

Bennett-Alexander, D., & Hartman, L. (2019). Employment law for business (9th). New York: McGraw-Hill.

Equal Employment Opportunity Commission (2009). About EEOC. Retrieved from http://www.eeoc.gov

Equal Employment Opportunity Commission. (2019). The age discrimination in employment act of 1967. Retrieved from https://www.eeoc.gov/laws/statutes/adea.cfm

Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000). Retrieved from https://supreme.justia.com/cases/federal/us/530/13…

Rothenberg, Jessica Z. and Gardner, Daniel S. (2011). Protecting older workers: the failure of the age discrimination in employment act of 1967. The journal of sociology & social welfare, 38(1) Retrieved from https://scholarworks.wmich.edu/jssw/vol38/iss1/

Post 2

Analysis

Carter is 56 years of age and was employed by an organization named Warren, to work as a disc jockey. I am going to assume that Warren is a private company that employees 35 workers. The company is located in the state of Alabama which is an at-will state. The organization was enduring economical hardship. Due the economic hardship, the company, Warren, had to lay off Carter. Carter decided to file a claim against Warren for age discrimination.

The federal Age Discrimination in Employment Act (ADEA) bars employers from discriminating against workers who are 40 years old and over. Under the ADEA, employers may not treat a worker who is under 40 more favorably than a worker who is over 40 based on age. The ADEA also prohibits employers from discriminating among workers who are 40 and older. For example, an employer cannot treat a 44-year-old employee more favorably than a 60-year-old employee simply because of their ages (EEOC, 2019).

The ADEA protects older workers from discrimination at all stages of the hiring process and employment relationship, from job announcements to terminations. The ADEA also bans discrimination against older employees in terms of fringe benefits, such as health insurance, disability insurance, and retirement plans. In general, this means that employers must offer equal benefits to older and younger workers. However, the ADEA allows the employer to rebut or defend itself from an age discrimination claim by providing reasons for termination other that age. According to the text Bennett and Hartman 2019, age discrimination laws are not included in Title VII, but are enforceable by the EEOC. Before an employee can file suit in court, he or she must file the claim with the EEOC.

Carter’s circumstance is difficult to analyze. I am unaware of the how many employees were laid off due to the economical hardship. Therefore, I must be presumptuous in this case and assume that Carter was among the few older employees who were laid off. I must also presuppose that the employees who are under 40 were treated more favorably by staying employed with the company due to their young age. Lastly, I am going to assume that the company did not give an advance notice of the lay off.

In order for the plaintiff, Carter, to win his claim against his former employer, Warren, he must provide satisfactory evidence that supports his claim of age discrimination. Carter must prove that he is in the protected class of 40 and older and has suffered adverse employment action due to his age. It is also imperative that he proves that his age did not affect his job performance. He could provide the court copies of his most recent performance evaluations. Lastly, he could also argue that the younger employees (below the age of 40) are presently employed by Warren and that Warren reason of economic hardship is pretext.

Carter’s case can be compared to the Braden v. Lockheed Martin, 2017. In summary, Robert Braden first started working in 1984 for RCA. After a series of mergers and acquisitions, Braden became a Lockheed Martin employee in 1995. Over the next 17 or so years, Braden rose to the senior staff level as a project specialist. However, during a round of layoffs in 2012, Braden was fired at the age of 66. At the time, Braden was given no specific reason for his firing. Of the 110 employees who shared Braden’s job title, only five were fired. All five were over the age of 50, of the seven employees in Braden’s work group; Braden was the only one who was fired. He was also the oldest. Throughout his career with Lockheed Martin, Braden had observed a culture of age discrimination. For instance, Braden noted that managers gave lower performance review scores to older employees solely on the basis of the employee’s age. Braden also learned that he was paid less than his younger colleagues.

In 2001, Braden noticed that his overall performance review rating score had dropped. When Braden asked his supervisor why his rating declined, he was told it was because a more senior manager believed that Braden had been working for Lockheed Martin for too long. Lockheed Martin denied firing Braden based on his age and claimed that Braden had a reputation as a “difficult individual” to work with. Lockheed Martin also said the company routinely retained employees who were older than Braden. After a four-day trial, the jury found in favor of Braden and awarded him over $51 million. In comparison to Carter’s situation, Braden was an older employee and was being treated less favorably than his younger colleagues. The Company Lockheed Martin used job performance to as reason to terminate Braden, but he prove the company’s defense was pretext.

Similarly, the Texas Roadhouse v. EEOC, 2011 case. The EEOC filed an Age Discrimination in Employment Act lawsuit in October 2011, alleging Texas Roadhouse restaurants unlawfully discriminated against older job applicants. Across its nationwide chain of restaurants, Texas Roadhouse allegedly refrained from hiring persons over 40 years of age for front-of-the-house positions.

Texas Roadhouse continues to deny the EEOC’s allegations, and the court has made no decision as to liability. A Texas Roadhouse representative said the company agreed to the settlement in the interest of moving on after a long and hard-fought litigation. The settlement is memorialized in a consent decree filed with the court. According to the consent decree, Texas Roadhouse must put up a total of $12 million to cover payments to qualifying claimants who submit valid and timely claims. Payments will be distributed after the number of valid and timely claims has been determined. EEOC will keep none of the settlement fund.

The settlement also requires Texas Roadhouse to take steps to prevent age discrimination in its employment practices. The company must establish a new position of Diversity Director and to submit to a decree compliance minor at the company’s expense. Managers will undergo training on compliance with anti-age discrimination requirements. Lastly, Texas Roadhouse was required to actively recruit persons over the age of 40 for front-of-the-house positions. The consent decree includes a court injunction barring Texas Roadhouse from discriminating against applicants on the basis of age.

As for the defendant, Warren, the company would have to prove they had a reasonable factor other than age (RFOA) for terminating the plaintiff, Carter. They could argue that regardless of his age, the decision would have been the same due a legitimate business necessity such as the economic or financial hardship the company was enduring. If the company decides to use economic hardship as their RFOA, they would have to provide the court with financial documents proving it was imperative for the business to lay off workers due to the company’s bottom line. Warren should also submit a copy of the strategy that was use to determine which employee(s) would be laid off such as last hired, first fired rule guideline.

Management tips

As a fundamental proposition, Warren must be able to articulate the reason for letting Carter or any employee go during the lay off. Warren should make sure that all employees are aware of the organization’s “rule of thumb” last hired, first fired guideline. Therefore, Warren’s written personnel policy should include specific rules as to when, and how, the company may conduct a layoff (include notice). The human resource manager of the company should know the rules and follow them. Also, the company should incorporate a severance agreement. The severance agreement should have an explicit release of liability and must state what it is and how an employee can reject it. The HR department must give employees 40 or older time to look over the severance agreement with a lawyer. A benefit such as outplacement should be included in the severance package. Including and outplacement benefit displays Warren’s continued support for Carter and other staff members even after they have left the company. An outplacement helps protect Warren’s brand, reduces stress internally and for the participant, and saves the company from other damaging things like lawsuits. Lastly, a grievance procedure should be implemented into the policy. A grievance is generally defined as a claim by an employee that he or she is adversely affected by the misinterpretation or misapplication of a written company policy or collectively bargained agreement.

Reference

Bennett-Alexander, D., & Hartman, L. (2019). Employment law for business (9th). New York: McGraw-Hill.

Braden v. Lockheed Martin Corp, Inc. (n.d.). Oyez. Retrieved April 23, 2019, from

https://www.oyez.org/cases/1962/146 (Links to an external site.)Links to an external site.

EEOC v. Texas Roadhouse Inc., Retrieved April 24, 2019, from

https://www.eeoc.gov/eeoc/newsroom/release/3-31-17.cfm (Links to an external site.)Links to an external site.

Equal Employment Opportunity Commission. (2019). The age discrimination in employment act

of 1967. Retrieved from https://www.eeoc.gov/laws/statutes/adea.cfm