Age discrimination a growing issue in a difficult economy

By Curt Burnett

For the Deseret News

Published: Thursday, March 8 2012 10:00 a.m. MST

In a brochure, the UALD addresses the question of identifying age discrimination: “Many times an employee may feel that he or she has been treated unfairly by an employer. Personal conflicts, disagreements over management style or personality differences, or favoritism toward an employer’s friend or family members are all examples of unfair treatment, but do not necessarily constitute unlawful discrimination.”

Austen gave some insight into how the UALD judged discimination claims. “Unless there are statements that directly indicate a decision was made because of a discriminatory reason, the Division generally will look at how other employees are treated and if this particular employee was singled out and treated differently," she said. "Remember, the party alleging discrimination has to provide specific information and/or examples of how he or she thinks their treatment has been different than that of other employees in a similar situation."

She gave an example: “If a person is fired for having too many absences and alleges age discrimination, we would look at whether other employees have had a similar number of absences and whether older and younger employees are treated the same.”

Filing a complaint

The UALD says certain requirements must be met prior to filing a complaint:

  • The employer must have at least 15 employees.
  • A charge of employment discrimination must be filed within 180 days of the alleged discriminatory act.
The first step in filing a complaint with the UALD is to contact the office in person or over the phone to give details about the alleged discrimination.

"We also ask for copies of relevant documents – termination notices, letters of discipline, information about witnesses – along with other information you feel will support your case,” Austen said.

If the filing meets requirements, a “formal charge” will be created and sent to the complainant for signature. The case will be forwarded to the EEOC for dual filing under applicable federal laws. Within 10 days, the complainant and the employer will receive a copy of the complaint, along with an offer to schedule a “Resolutions Conference.”

“The conference is a voluntary opportunity to resolve or mediate the charge of discrimination with the aid of an experienced mediator,” Austen said. “It is not a hearing, and the mediator will not issue a decision on the case merits.”

If the parties reach a settlement, the Division prepares a settlement agreement and the case will be closed upon fulfillment of the agreement. If no settlement is reached, the case is assigned to a division investigator, who may conduct interviews, perform a site inspection and request additional information. The division may also hold a fact-finding conference. The division will issue a finding of whether there is “reasonable cause” or “no reasonable cause” to believe that illegal discrimination has occurred.

Either party may appeal the division’s finding by requesting:

  • An evidentiary hearing before an administrative law judge with the Utah Labor Commission;
  • A “Substantial Weight of Review” by the EEOC; or
  • A “Right to Sue Notice” from the EEOC.

O’Brien, who works with corporate managements, said discrimination cases “are difficult to bring” – an assessment borne out by 2011 statistics from the EEOC. The federal commission and the state agencies handled 23,465 complaints that resulted in the following types of resolutions:

  • "No reasonable cause” – 17,654, or 67 percent
  • "Reasonable cause” – 796, or 3 percent
  • “Administrative Closures” – 4,270, or 16.2 percent
  • “Merit Resolutions” – 4,396, or 16.9 percent

(Note: Total resolutions exceeded the charges because outcomes may be recorded in multiple categories.)

Monetary benefits from successful charges – not including litigated outcomes – rose 77 percent to $95.2 million in 2011, compared with $53.7 million a decade earlier.

“The burden of proof is on the employee or individual to show that age, race, gender, etc. was a factor that made a difference in his or her treatment," O'Brien noted of alleged discrimination cases. “We call it the 'but for' standard – in other words, ‘but for' age discrimination, the person would have been hired, promoted or not terminated. That’s not an easy standard to prove, because typically the employer is going to present evidence of some other performance and behavior problem."

“It’s challenging to prove ‘failure to hire’ based on age discrimination,” O’Brien continued. “The complainant would have to demonstrate that he or she was equal to or superior to the chosen applicant but somehow discriminated against because of age. That’s a pretty large hurdle and probably the reason we don’t see a lot of hiring cases."

Robert doesn’t plan to file an age-discrimination complaint because he can’t document a specific instance of illegal bias.

“I’ll just keep on submitting applications in the hopes that someone will get beyond my age and recognize a talented – and obviously experienced – potential employee,” he said.

Curt Burnett is a professional writer/communicator whose various incarnations have included Deseret News reporter, Senate press secretary and Vice President of Public Affairs for Questar Corporation.

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