Can Cross-Generational Viral Internet Phrases in the Workplace Create Unlawful Age Discrimination?

“OK Boomer” is having a moment on the internet, appearing often in viral jokes and memes. It is widely considered an all-purpose retort by the younger generations of Millennials and Gen Z’ers to dismiss thoughts and ideas they view as too old-fashioned. Some even use “OK Boomer” to discount opinions stereotypically attributed to the Baby Boomer generation.

For their part, Millennials suffered being labeled “The ME ME ME Generation,” which has turned into other dysphemisms such as “snowflake,” used to describe self-perceived specialness.

When do viral jokes and memes in the workplace become evidence of unlawful age discrimination?

“OK Boomer” began simply enough as an irreverent joke pointing out generational differences in opinions. But, at its core, it could be interpreted to convey the message: “You are old and therefore your opinion is antiquated.” In the workplace, such phrases can create an inference of age discrimination under federal anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA) and corresponding state anti-discrimination laws. These laws protect all workers who are at least 40 years of age from discriminatory practices in employment. They also protect workers from age-based discrimination and harassment.

Use of the phrase “OK Boomer” once likely will not rise to the level necessary to demonstrate actual discrimination or harassment based on age. However, repeated comments that reference age and use of such phrases as “OK Boomer” or “snowflake” may be used as evidence of age-based discriminatory practices. Additionally, these types of remarks may be used in litigation to support the argument that employers who do not take steps to stop the behavior foster a workplace culture that tolerates age-based discrimination.

Some state laws also protect younger workers from discrimination or harassment based on age. For example, the New York City Human Rights Law and the New Jersey Law Against Discrimination protect employees of all ages from age-based discrimination and harassment. Therefore, repeatedly referring to a younger worker as a “snowflake” or otherwise treating that employee less favorably because of his or her younger age may be seen as age-based discrimination or harassment.

Employers must impart to their employees a shared responsibility to prevent and avoid comments that may be construed as ageist. Employers should consider including in their regular training sessions lessons on the prohibition of age-based comments and remarks in the workplace. Even when intended to be funny, such comments and remarks can be seen as evidence of age-based animus and may lead to claims of age discrimination or harassment. Similarly, employers should consider adopting policies that clearly prohibit comments and remarks that are directly tied to age or demonstrate generational animus.

For additional guidance on these issues, please contact a Jackson Lewis attorney.

Court Orders Government to Turn Over Statements from Non-Testifying Informants

The U.S. District Court for the Eastern District of New York recently rejected the government’s argument that statements from non-testifying witnesses collected during a wage and hour investigation were protected under the government-informant privilege. Secretary of Labor v. Yianna Food Corp. d/b/a Williston Town House Diners, et al., E.D.N.Y. Case No. 17-CV-6974.

Government agencies frequently assert the government-informant privilege to “withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of the law.” Roviano v. United States, 353 U.S. 53, 59 (1957). The informant’s privilege is designed to protect from retaliation individuals who give information to the government during investigations. The government often asserts the privilege during litigation against an employer to protect the individuals from whom it gathered information.

The privilege can create difficulty for an employer preparing for trial because the employer may not have access to potentially relevant information that it could use to defend the case. For example, a non-testifying individual may have given the government a statement that contradicts what a testifying witness will say at trial.

Fortunately, the government-informant privilege is not absolute. Where an informant’s identity is “essential to the fair determination of the case,” the government may be forced to reveal the informant’s name and the substance of the informant’s statement.

As trial approached in this case, the government produced statements from the individuals who appeared on its trial witness list, but it refused to produce anything from individuals from whom it obtained statements but would not be trial witnesses. The employers argued that this was unfair because the non-trial witnesses’ statements could contain information helpful to them in preparing to cross-examine the individuals who would testify during trial.

The district court agreed with the employers and ordered the government to produce several unredacted statements. After reviewing the statements at issue in camera, the court determined that several of the statements from non-witnesses referenced individuals who would be trial witnesses. Accordingly, the court found those statements would be relevant to trial preparation and the employers’ interest in having them outweighed the government’s interest in protecting its informants.

Lesson: Employers preparing for trial against the government should be aware the government may be withholding statements that could be helpful in defending against the government’s allegations. Employers should be prepared to seek court relief to ensure full access to relevant information.

Jury Finds Against Female Physician’s Unequal Pay Claims

A federal jury in Iowa has rejected Equal Pay Act claims by a female physician alleging she was paid less than her male colleagues in the same network for performing substantially equal work under the same compensation formula. Bertroche v. Mercy Physician Assoc., Inc., No. 1:18-cv-00059 (N.D. Iowa Nov. 13, 2019).

The jury also found the physician network that employed her did not breach her employment agreement. After a six-day trial, the federal jury deliberated for less than three hours before delivering a complete defense verdict.

Please find the rest of this article on our Healthcare Workplace Update here.

Importance of Properly Documenting Workplace Investigations

A recent decision from the U.S. Court of Appeals for the Sixth Circuit upholding termination of a state trooper for “hitting on” female drivers during traffic stops and breaching his Last Chance Agreement highlights the importance for employers to document investigations into employee misconduct and the reasons for any resulting discipline – or non-discipline.

In Johnson v. Ohio Department of Public Safety, No. 18-4181 (6th Cir. Nov. 13, 2019), the Sixth Circuit affirmed summary judgment in favor of the employer on an African-American state trooper’s claim that he was unlawfully terminated because of his race.

The trooper was fired for inappropriate conduct with female motorists whom he pulled over. While arresting a female motorist for drunk driving, the trooper asked the woman out to a restaurant. A month later, the trooper spotted the same woman driving, pulled her over without probable cause, asked her out to a casino, and gave her his phone number.

After the Department recommended termination, the trooper signed a Last Chance Agreement (LCA), agreeing that he would be terminated for any further similar behavior. Subsequently, the officer pulled over another intoxicated female motorist, drove her home without activating his in-car camera, stayed at her home for more than 30 minutes after radioing his station that he was leaving, and later texted the woman from his personal phone. He was fired for violating the LCA. The trooper sued for unlawful discrimination under Title VII of the Civil Rights Act.

To advance his discrimination claim, the plaintiff compared himself to a white trooper who was investigated for befriending female traffic stop detainees, but received only a one-day suspension. The Sixth Circuit found the investigative records showed many differences between the two officers’ conduct that indisputably showed their conduct was not of comparable seriousness. For example, the Department could not substantiate an allegation that the white trooper tried to “friend request” female detainees on social media, so he was simply warned. Three years later, the white trooper talked to a female detainee about personal matters during a traffic stop and, later, while off-duty, sent her a social media friend request. He was suspended for one day.

An investigation confirmed the plaintiff’s first instance of misconduct, his infractions were committed while on-duty and in uniform, his interactions were with intoxicated women, and he went to one woman’s home. Further, the trooper had signed a written LCA. In contrast, the first allegation against the white officer was uncorroborated, he was off-duty when he sent his friend request, the women involved were not intoxicated, and he had not signed an LCA.

Documenting investigations and resulting levels of discipline or non-discipline is key. Employers cannot predict which employees will be named as comparators by another employee who is disciplined and files a claim. Well-documented investigations, including those that are inconclusive or result in minor or no discipline, can later help demonstrate indisputable reasons for differing levels of discipline for different employees. Further, detailed investigative files help witnesses recall important facts when they testify at depositions that take place years after the incident. The time taken to properly document investigations can benefit employers later.

Jackson Lewis attorneys are available to assist in workplace investigations and litigations.

“Me Too” Evidence in a #MeToo World

Before “#MeToo” became a movement, it was a well-known, damaging type of evidence to employers litigating discrimination claims.  “Me too” in the employment litigation context refers to evidence that employees other than the plaintiff also were also discriminated against. Employers had traditionally sought, with mixed results, to exclude such evidence as improper character evidence under FRE 404(b) or as substantially more prejudicial than probative under FRE 403.  Debate raged over admissibility. In 2008, the U.S. Supreme Court tackled the issue and held that “me too” evidence is not per se admissible or inadmissible.  See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Rather, the Court found, admissibility depends on a fact-intensive inquiry.

In deciding on admissibility, courts consider whether other discriminatory behavior is close in time to the events at issue, whether the same decision maker is involved, and whether the “me too” witness and plaintiff were treated similarly. See Hayes v. Sebelius, 806 F. Supp. 2d 141, 144-45 (D.D.C. 2011). Typically when a court admits “me too” evidence, the court concludes that the evidence may show motive or intent to discriminate.

“Me too” evidence is powerful.  Even if only one witness testifies that he/she also experienced the same kind of mistreatment, the jury impact can be profoundly damaging to the defense.  So what is an employer facing “me too” evidence to do?

Three Suggestions:

  1. Distinguish: Identify the potential “me too” witnesses early in discovery. Try to show how different they are from the plaintiff and thus not “similarly situated.” Every difference helps show that any probative value is substantially outweighed by the danger of unfair prejudice under FRE 403.
  2. Mini-Trials: When multiple “me too” witnesses exist, consider the mini-trial argument under FRE 403. That is, if the court allows evidence about alleged mistreatment of others, the employer will have to defend each vigorously, wasting time and introducing needlessly cumulative evidence.
  3. Join ‘em: Identify in discovery whether the employer may have “not me” comparator evidence to combat “me too” evidence. “Not me” evidence may refer to evidence of other, similarly situated employees within the plaintiff’s protected class who were not subjected to alleged mistreatment/adverse action.  It may also refer to employees outside the plaintiff’s protected class who are similarly situated to the plaintiff and were treated in the same or similar way.  This suggestion may require an employer to take a broader-than-usual view of discovery because the helpful “not me” evidence may originate in other locations within the organization outside what might normally be considered a reasonable scope of discovery.  For example, assume the plaintiff is fired for violating a company-wide policy against personal cell phone use.  If the employer fired other employees outside the plaintiff’s protected class for the same thing, the employer may want to use that evidence to rebut an inference of discrimination, even if the other employees are located in different locations/states from the plaintiff.  Ordinarily, the employer might not agree to a multi-state scope of discovery.  But the benefit of having this “not me” evidence admitted may outweigh the costs associated with broader discovery.  Employers should carefully consider this decision with the help of counsel.

 

The #metoo era presents significant challenges for organizations facing “me too” evidence in employment litigation. Addressing it early in discovery can help improve the likelihood of success at summary judgment, motions in limine, and trial.

New Jersey Prohibits Enforcement of Non-Disclosure Provisions in Settlement Agreements, Other Contracts

A sweeping amendment to the New Jersey Law Against Discrimination (LAD) bars enforcement of non-disclosure provisions in settlement agreements and employment contracts, and prohibits the waiver of substantive and procedural rights under the statute. The amendment applies to all contracts and agreements entered into, renewed, modified, or amended on or after the effective date, March 18, 2019.

Highlights

The amendment has the practical effect of prohibiting typical confidentiality provisions that accompany settlements of LAD claims. The amendment provides that non-disclosure provisions in employment contracts and settlement agreements are against public policy, and deemed to be unenforceable against a current or former employee if they have “the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.”

Under the amendment, every settlement agreement resolving a LAD discrimination, retaliation, or harassment claim by an employee against an employer must include a bold and prominently placed notice stating that “although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.”

In addition to the practical impact of the amended LAD regarding confidentiality of settlement terms, employers should determine whether existing contracts and agreements contain waivers of procedural and substantive rights guaranteed by LAD. The amendment provides that “[a] provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.” The amendment further provides that “[n]o right or remedy under the [LAD] or any other statute or case law shall be prospectively waived.”

This language likely will lead to litigation over the effectiveness of jury-waiver provisions and agreements to arbitrate LAD claims against an employer on or after the effective date of the amendment. While what impact the amendment will have on arbitration is unclear, legal challenge is expected as the amendment appears to conflict with the Federal Arbitration Act, which preempts state law that prohibits the use of arbitration agreements. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011) (“When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”).

In addition, if an employer seeks to enforce a provision prohibited by the new law, aggrieved employees may file suit in New Jersey state court to recover common law tort remedies, in addition to reasonable attorneys’ fees and costs associated with the filing.

***

Given the broad language in the amendment and its effect on all types of agreements relating to employment (even severance agreements after assertion of LAD claims), it is important that employers seek guidance regarding modifying settlement agreements when resolving LAD claims with current or former employees, and reviewing employment contracts and other agreements that may conflict with the new law.

The Legislature introduced the amendment at the height of the #MeToo movement, after news reports revealed that settlement agreements of high-profile cases involving well-known entertainment and media personalities accused of sexual harassment included non-disclosure provisions. The amendment’s supporters in the Legislature have praised the amendment for allowing purported victims of unlawful conduct to discuss their claims publicly. Critics note that the promise of confidentiality that incentivized many employers and employees to resolve discrimination, harassment, or retaliation claims through settlement has largely been eliminated by this amendment.

Jackson Lewis attorneys are available to answer questions regarding the LAD and to assist employers in achieving compliance with its requirements.

The Rules of the Closing Argument

The evidence is in, the jury instructions are done, final trial motions have been made (and appeal points dutifully preserved), and it is time for the final argument, the holy grail of the trial lawyer. After months (if not years) of preparation, it is finally time to just argue, to tell the jurors what you think about the evidence and convince them to agree with your view of what is just and proper, right? Wrong.

Although trial lawyers are allowed significant latitude during the closing arguments, there are rules that must be followed. If you break these rules, your opponent will have the right – if not obligation – to object and disrupt your closing argument, as well as establish to the jury (during your time in the spotlight, no less) that he or she knows the law and the facts better than you. Unfortunately, there is no official list of rules, but here are a few established restrictions:

  • The “Golden Rule.” That one should treat others as they wish to be treated is a truth rooted in most religions and cultures. But this lesson is prohibited in the courtroom. Variations of this argument include asking jurors to “put themselves in the shoes of the [plaintiff/defendant]” or “imagine how it must have felt to be wrongfully terminated that way.” These arguments are improper as they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias, rather than on the evidence. See Caudle v. District of Columbia, 707 F.3d 354, 359, 404 U.S. App. D.C. 56 (D.C. Cir. 2013).
  • Personal opinions on culpability, witness credibility, or justness of a cause. Rule 3.4(e) of the Model Rules of Professional Conduct prohibits the introduction of the trial lawyer’s personal opinions. Atticus Finch famously violated this rule (among others) in To Kill a Mockingbird, arguing during closing statements that “I have nothing but pity in my heart for the Chief Witness for the State …. But, my pity does not extend so far as to her putting a man’s life at stake.” Then again, Atticus lost.
  • “Send a Message.” The jury can’t be asked to “send a message” with regard to awarding or determining compensatory damages. Courts have concluded that this “us-against-them” plea has “no appeal other than to prejudice by pitting ‘the community’ against a nonresident corporation [and] is an improper distraction from the jury’s sworn duty to reach a fair, honest and just verdict.” Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985). The “Send a Message” argument is allowed, however, where it is directed to an award of punitive damages or toward a non-damage issue, such as a finding of negligence. See Koger v. Norfolk S. Ry., No. 1:08-0909, 2010 U.S. Dist. LEXIS 26209, at *13 (S.D. W. Va. Feb. 26, 2010) (citing cases).
  • Facts not in the record. You can’t argue facts not in the record or suggest inferences from facts not before the jury; to do so mocks and insults the trial process. Crum v. Ward, 146 W. Va. 421, 434, 122 S.E.2d 18, 26 (1961). Trial lawyers are allowed, however, to include in the final argument facts of “common knowledge or illustrations drawn from common experience, history or literature.” People v. Hill, 17 Cal. 4th 800, 819, 72 Cal. Rptr. 2d 656, 664, 952 P.2d 673, 681 (1998); see Smith v. State, 388 Md. 468, 487, 880 A.2d 288, 299 (2005).
  • Inflaming the passions or prejudices of the jury. You can’t “excite and inflame the minds of the jury against one of the litigants [or] appeal to their passions and prejudices.” 2A M.J. ARGUMENT AND CONDUCT OF COUNSEL § 17 (2018). Likewise, counsel in closing argument must not appeal to the jury’s economic fears and passions. Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188, 585 S.E.2d 557 (2003).
  • “Opposing Counsel is an idiot.” You must remain objective and not take personal shots at opposing counsel or his/her case. Not only will the court rebuke you for it, but this type of conduct legitimately invites a counterattack that might be more damaging than your initial jab.

A final note on objections: The timeliness of an objection during closing argument is critical, and waiting until the judge has charged the jury (perhaps even out of politeness) is generally viewed as too late. For example, in D’Auria v. Allstate Ins. Co., defense counsel violated nearly every one of the above rules, engaging in character assassinations of the plaintiff, plaintiff’s counsel, and plaintiff’s witnesses, injecting his personal opinions as to the credibility of the witnesses, belittling the plaintiff, appealing to the conscience of the jurors to send a message to the community, and even apologizing to the jury for the plaintiff’s case. 673 So. 2d 147 (Fla Dist. Ct. App. 1996). But because plaintiff’s counsel did not timely object to these arguments, the court refused to order a new trial or take away the jury verdict.

A Cautionary Tale: The Importance of Implementing Proper Policies

Employers have little control over employees’ bad, impulsive decisions. However, employers have full control over how they respond to a complaint of harassment. Any employer can ensure it investigates an allegation of harassment. Failure to do so can be costly.

On December 19, 2018, a Florida federal jury rendered a verdict awarding $850,000 in compensatory and punitive damages to Elulalia Salazar-Santiago, a female worker working at Favorite Farms.

The evidence at trial showed that Santiago was hired by the company in September 2015 as a seasonal worker at its Florida location. Sometime after she began this role, Hector Cruz (“Cruz”), Santiago’s supervisor, demanded that Santiago have sex with him or lose her job. The company provided housing on its premises for employees and their family members. On November 13, 2015, Cruz entered into Santiago’s housing unit claiming that he needed to fill two empty bedrooms. Instead, he pushed Santiago into a room and raped her. Cruz threatened Santiago’s job if she reported the sexual assault. Santiago reported the assault to the company and the local legal authorities on the same day. The evidence showed that the company lacked a policy for handling sexual harassment complaints, and it failed to investigate Santiago’s complaint; and that the company retaliated against Santiago for reporting the assault by terminating her employment.

This case underscores the importance of implementing equal employment opportunity (EEO) policies – including a non-retaliation policy. Without EEO policies, employees simply do not know how to respond to complaints – even if they feel they should. Implementing and following the policies allows an employer to show that it reacted and investigated a complaint promptly and thoroughly. Employers must document the efforts they undertake when investigating a complaint – including any discipline it takes against employees or reasons why disciplinary actions were not taken. Employers must also be prepared to show that any action it takes against an employee was not in retaliation for reporting protected activity. Lastly, complaints by subordinates about their supervisors should be handled with extreme care because of the power and leverage supervisors have over a subordinate.

If you have not done so in the last year:

  1. Revisit your company’s anti-harassment policy (if you do not have this policy, have your counsel draft one for you);
  2. Make sure there is a clear procedure for how to report harassment; and
  3. Provide refresher training to managers and supervisors about how to report complaints.

Please contact Jackson Lewis with any questions.

Former Winery Employees Awarded $11 million

Plaintiffs Megan Meadowcroft and Amanda Brown, two winery employees, alleged that they had been harassed on numerous occasions by their supervisor, General Manager Pinero. Specifically, Brown alleged that Pinero attempted to flirt with her, and physically made contact with her. Meadowcroft alleged that Pinero made sexually explicit gestures, sexually explicit comments, put his hands on her waist and under her buttocks as she was serving customers, and on at least one occasion told her that she could be a manager if she would have sex with him. Along with a claim of harassment, they filed claims of retaliation, failure to prevent harassment/retaliation, and negligent supervision, retention, and hiring.

After Meadowcroft complained to Silverton Partners and Essence Business Group, the owners and managers of the winery, about Pinero’s conduct, he was fired. However, Meadowcroft was not put on future work schedules.

After he was fired, Pinero reached out to Silverton and Essence and asked to be re-hired. After he promised additional sales, and better behavior, he was re-hired as General Manager.

Upon his return, Brown complained to Silverton and Essence about Pinero’s presence when he began his re-employment, and even obtained a temporary restraining order. However, Brown was placed on leave while Pinero was allowed to continue to work pending the final restraining order hearing. Even after the restraining order was granted, Brown was never put back on the schedule despite following up with the defendants multiple times asking to be placed back on the schedule.

A jury found in favor of Meadowcroft and Brown on all counts, awarding each plaintiff $1,500,000 in future emotional distress damages, $1,000,000 in past emotional distress damages, and $3,000,000 in punitive damages.

Lesson for employers: it is crucial for employers to understand and realize that after employees raise protected concerns about their employment, especially ones as egregious as those complained of in this case, that they avoid treating them differently in any way after complaining. Clearly the winery’s conduct of taking both employees off the schedule within weeks of their complaints gave the jury the impression that the change in hours was directly because of their complaints.

The case is: Meadowcroft and Brown v. Silverton Partners, Inc. and Essence Business Group, Inc., Los Angeles County Superior Court, Case No. BC 633239.

 

A $6M Misunderstanding? Pennsylvania Jury Finds Age and National Origin Discrimination

Following a five-day trial, and nine hours of deliberation, a federal jury in Pennsylvania has awarded more than $6 million to a former Teva Pharmaceuticals employee. Middlebrooks v. Teva Pharmaceuticals USA, Inc., No. 2:17-cv-00412 (E.D. Pa. Nov. 19, 2018). The employee claimed that the company discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act (ADEA) and on the basis of his national origin in violation of Title VII of the Civil Rights Act and retaliated against him for lodging internal complaints.

Stephen Middlebrooks, who was 58-years-old at the time of his termination and a United States national, alleged that his younger, Israeli manager, Nir Aharoni, told him the company intended to make certain employment decisions based on age – a practice which, Aharoni purportedly said, was commonplace in Israel, where Teva is headquartered. Middlebrooks further alleged that Aharoni demonstrated bias against American employees. He claimed, for example, that Aharoni remarked that Americans had “narrow-minded perceptions of Israelis.”

Middlebrooks alleged that, after he complained about the foregoing conduct, Aharoni (a) gave him the worst performance rating he had received in his 15-year tenure, and (b) denied him an equity award on grounds that Teva only gave such awards to employees with long-term futures at the company.

According to Middlebrooks, HR investigated his complaints and concluded that Aharoni had not engaged in discriminatory conduct. HR, however, recommended that members of Aharoni’s team – against whom Mr. Middlebrooks had also made complaints – receive “cultural sensitivity training.” Middlebrooks alleged that he was never advised whether this recommendation was implemented and that, shortly after HR concluded its investigation, he was placed on a performance improvement plan (PIP) for the first time during his career at Teva. Soon thereafter, Middlebrooks alleged, he filed a Charge with the Equal Employment Opportunity Commission. In response, Aharoni allegedly extended the duration of the PIP and, when that extended period concluded, terminated Middlebrooks’ employment.

Teva has submitted post trial motions. The company likely will challenge the jury’s award of $5 million in punitive damages. (The jury also awarded $1.16 million in compensatory damages.) Under Title VII, punitive damages are capped at $300,000 for employers with more than 500 employees. According to reporting, Middlebrooks’ counsel is taking the position that, notwithstanding the Title VII cap, the full punitive damage award is recoverable on Middlebrooks’ ADEA claim. The Third Circuit Court of Appeals has not yet weighed in on the issue, but a number of district courts in that circuit have held that punitive damages are not recoverable in any amount under the ADEA.

The jury verdict provides an important lesson for employers with operations in multiple countries – or just in multiple states or cities. Employment laws vary from country to country, from state to state, and at the local level. Managers supervising employees in more than one location should be trained on compliance with the pertinent employment laws in each such location.

 

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