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May 20, 2007
ST. LOUIS, MO. - Thomas Cross worked for Lucent Technologies Inc. and its predecessors for 34 years, with a history of good evaluations. In fact, Cross, who was an installation estimator in Chesterfield, Mo., received an "outstanding" evaluation shortly before he was fired at age 55.
The firing of Cross was part of a downsizing by Lucent in 2002, but the veteran worker said he was let go while younger employees with lower ratings were retained.
Cross took his complaint to the federal Equal Employment Opportunity Commission, which sued Lucent for age discrimination. This month, Lucent said it had done nothing wrong but agreed to pay $195,000 to settle the case.
Cross' firing and the ensuing age-bias litigation is a scenario being repeated across the country as companies' streamlining efforts take their toll on baby boomers who want to stay on the job, but whose salaries make them targets for layoffs. "We're seeing a ton of it," said Anne E. Gusewelle, the EEOC senior trial attorney who handled Cross' case.
This month Circuit City Stores Inc. was sued by employees who lost their jobs in a move by the company to get rid of 3,400 higher-paid workers.
The lawsuit, filed in California, alleges that the terminations violated state law barring age discrimination. The suit seeks class-action status. It was filed by three employees, ages 57, 59 and 66.
Federal law and laws in many states prohibit discrimination against workers who are at least 40. In the federal system, these workers are protected by the Age Discrimination in Employment Act. Under the ADEA, there has to be a valid reason unrelated to age for termination.
The large number of baby boomers in the work force is helping to drive what some lawyers see as a steady rise in the number of age-bias complaints.
According to the Census Bureau, there were 78.2 million baby boomers as of July 1, 2005. Many boomers, the generation born between 1946 and 1964, have fought for civil rights, are bolder than the previous generation, and will stand up for themselves when they fall victim to what they see as unfair treatment.
"It's shocking and hurtful to them," said Donna L. Harper, a plaintiffs' lawyer with Sedey Harper P.C. in St. Louis. "It's like being cheated on by a spouse. You find out and you are sick to your stomach. It is such a betrayal for so many of these clients. Your whole world falls apart. A job is like that to people."
Although EEOC statistics show a drop in the number of age-bias complaints it has received, lawyers who specialize in discrimination issues disagree as to whether those figures accurately reflect the bigger picture.
Some say there has been a steady increase in age-bias allegations, but the EEOC figures exclude many lawsuits in state courts as well as matters that were resolved before reaching government agencies or courts. However, others say a healthy economy and low unemployment mean fewer lawsuits.
Charles M. Poplstein and Harry W. Wellford Jr., partners at St. Louis-based Thompson Coburn LLP who represent businesses in employment cases, are among those who haven't seen increases in straight age-bias cases.
However, they said there has been a rise in retaliation cases in which workers - often seasoned employees - allege they were fired because they were "whistle-blowers" who complained about misconduct at their companies.
Older workers may have an easier time suing under a landmark U.S. Supreme Court decision in 2005 allowing cases against companies with policies that are age-neutral on their face but have a disparate adverse impact on older workers.
One widely watched national case that is expected to test how far that ruling goes is pending against Allstate Insurance Co. in U.S. District Court in St. Louis.
In October, Judge E. Richard Webber ruled that Allstate's one-year freeze on rehiring former sales agents had an adverse impact on older agents and that a jury should decide whether the policy falls under an exception to the ADEA. That ruling is being appealed.
Webber's ruling stems from an EEOC lawsuit against Allstate alleging that in 2000 the company fired its sales agents, offered to make them independent contractors and refused to rehire them in other positions for one year. Because more than 90 percent of the agents were 40 years of age or older, the EEOC alleged that Allstate's rehiring policy violated the ADEA.
Both plaintiffs' and defense lawyers agreed that age-discrimination cases usually stem from a worker-manager dispute rather than a companywide policy.
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