The New York Times Will Need to Start Using Its Online Thesaurus

To find similes for the word "hypocritical". Really, the irony here is just too rich-the Gray Lady, ostensible supporter of equal rights, slayer of the patriarchy, champion of political correctness everywhere, can't handle a single request by its executive editor for equal pay.

Seriously, you can't make this stuff up.

Age Matters

Here’s an interesting article regarding a study about people’s perceptions of older people and their attitudes, and how it might affect the workplace. Age discrimination cases are notoriously difficult to prove not only because of the higher standard of proof (an age discrimination plaintiff has to show that his age was the “but for” cause of the adverse employment decision; plaintiffs with Title VII discrimination claims only have to show that the protected factor “motivated” the employment decision), but the evidence of age bias is usually not nearly as direct as it is in other forms of discrimination cases.

The study revolved around the reaction of 137 Princeton University undergraduates, who were shown a video of someone who would be their partner in a trivia contest talking about themselves. These potential partners were all white males, but were either 25, 45, or 75 years old. Each one adhered to the same script in talking about himself, except that half the time the person indicated that he was the kind of person who shared his wealth with relatives (a "compliant" personality), and the other half of the time he said he had no obligation to share with relatives. For the 25 or 45 year old subject, it made no difference whether he was generous or not, but the 75 year-old who indicated he was not generous (this was characterized as being “assertive” by the researchers) received a very high negative rating from the undergrads.

The lesson- if you are an older worker, and you want to speak your mind to your manager, you should expect some fall out. Does this equate to age bias? Unquestionably, but it appears to be something that is fairly subtle, although strongly ingrained.  Per my standard advice, the key to combating this type of bias is to focus on performance specifics, rather than some unspecified type of gut reaction to a particular individual. My guess is that it's easier for people to recognize visceral reactions triggered by race or gender, but it's clear from this study that age can generate just has negative a response.

There is a lot more research developing on the this type of bias, since these age discrimination claims are the fastest increasing type over the last few years. That trend should continue as Boomers move into the Social Security zone, but find it increasingly necessary to work.

Aging Feline Appendages

The Tenth Circuit federal appellate court issued an important opinion recently with respect to the application of the so-called Cat's Paw theory of employment discrimination to age discrimination cases.

I am generally sensitive to any type of age discrimination development because I think that this is the next "big thing" in employment litigation. Certainly demographics argue in favor of a burgeoning number of age discrimination claims as the Boomer population refuses to go gently into that good night.

The Cat's Paw model is fairly straight forward - prohibited discriminatory acts that are accomplished through the manipulation of someone other than the person with the illegal discriminatory bias are just as illegal under federal discrimination law as discrimination that is accomplished directly by the alleged bigot. The Supreme Court validated the basic concept in a matter heard just last term.

The 10th Circuit considered the application of the theory in an age case where two human resource employees, one 62, and one 23, were investigated for revealing confidential medical information about a company employee.  After an investigation, the company terminated both employees. The older employee sued for age discrimination, claiming that the local office manager and HR supervisor were biased against older workers, and that they had influenced the decision by the company's senior HR management to terminate her employment.

As an initial matter, the fact that the company terminated a younger and an older employee at the same time for the same conduct significantly undercuts basic age discrimination claim. Moreover, the Tenth Circuit determined that because this case involved age discrimination, the employee must demonstrate that the discriminatory animus of the two supervisors (who were alleged to influence the ultimate termination decision) was the determining factor that caused the termination. To use legal terminology, age bias must be the "but for" cause of the termination.

This "but for" cause requirement is unique to age discrimination cases under recent Supreme Court precedent. It significantly raises the proof requirement for plaintiffs in age discrimination cases, and the Tenth Circuit correctly applied the standard here. It also helped the employer that there was not one, but two truly disinterested parties who made the termination decision and that these managers conducted independent interviews of the individuals involved in the improper disclosure of information. These factors all worked to isolate the decision makers from the alleged discriminatory animus and short circuited any feline related discrimination claims.  

The case again points up the dramatic importance of establishing and maintaining independent channels of investigation when these types of bias claims come forward.