Age Discrimination: Older Workers Worry About Hiring Bias

By:  Ann Brenoff, posted in The Huffington Post, October 8, 2012

In the first 919 days that Jim Pawlak was out of work, he sent out 908 resumes and was called for fewer than 50 interviews. He has just one explanation: age discrimination. It's a "first to be fired" and "last to be hired" syndrome, said the 48-year-old former Xerox employee.

The unemployment rate for older workers (those age 55+) remained unchanged at 5.9 percent in September, the Labor Department announced last week. But workers over age 55 made up 54 percent of the long-term unemployed -- defined as people out of work for more than 27 weeks -- up from 50.9 percent in August, according to an analysis by the AARP Public Policy Institute.

Moreover, older Americans stayed jobless longer -- an average of nearly 56 weeks, compared to 37 weeks for younger workers. When they do find jobs, these employees typically take a bigger pay cut than their younger counterparts, according to a Government Accountability Office study released earlier this year.

The Age Discrimination in Employment Act of 1967 (ADEA) protects people 40 and older from employment discrimination based on age, and applies to both employees and job applicants. Age discrimination now accounts for nearly one-quarter of all complaints filed with the Equal Opportunity Employment Commission. An AARP survey found one-third to one-half of baby boomers had experienced age bias in a job search.

Pawlak, who lives in a Chicago suburb, worked for 20 years for Xerox, mainly in customer service/sales support, before he lost his position in a company-wide layoff in 2008. Since then, he's traveled the job-hunting circuit, picking up freelance or contract work, but nothing on staff. He answers every ad he sees, despite knowing what a black hole Internet postings can be, and has learned to be cautious about stating salary expectations. He recalls taking an hour to apply online for a position, pausing at the box where it asked for desired salary.

"I decided to go for it and put down a figure that was about three-quarters of what I had been earning," he said. The automatic email rejection came within 15 minutes. "They saw my salary expectation and bam! -- end of their interest in me," he said.

Pawlak recently worked for 14 months under a $20 an hour contract and by all accounts, he said, performed well and was well-liked. But when the position was made full-time, it went to a recent college graduate. Had they offered it to him at the salary they paid the new graduate, he said, he would have taken it. "But they never asked me," he said. "Why not?"

He answers his own question in his next breath: "They assumed I wouldn't want it because of the pay."

The GAO report cites several studies that explain why companies favor younger workers: They typically earn less; employers expect they'll have less of an impact on health care costs; and they won't have an issue working for a younger boss. Employers also worry that older workers' technical skills are out of date, and, since they're obviously closer to retirement, they'll bail faster.

Older Americans who confront that bias will have a tough time pursuing relief. A 2009 Supreme Court decision made it more difficult for older workers to prove claims of illegal bias based on age. In response, Republican Senator Chuck Grassley and Democratic Senators Tom Harkin and Patrick Leahy have introduced the “Protecting Older Workers Against Discrimination Act” -- which eight in 10 older voters support, according to the AARP.

Meanwhile, some post 50s have experienced ageism not from employers, but co-workers. Lisa Bolivar is a journalist and writer based in Florida. "I'm 52 and look my age," she said.

Nevertheless, she was stunned when a younger colleague at a website where she worked under contract told her quite matter-of-factly that "people like you shouldn't be here."

"People like me?" Bolivar responded.

"Old people," said the 20-something.

Bolivar, who was embroiled in a pay dispute at the time and ended up leaving the company after nine months, said she never reported the comment to her supervisor or anyone else. Suing isn't her style, she said, and the comment wasn't why she left the job. "But it was ageist -- absolutely," she believes.

As they struggle with long-term unemployment, older Americans are doing what they can to get by. An AARP Public Policy Institute report released last month 69 percent of older Americans had slashed expenses; 57 percent of workers had tapped savings; 52 percent delayed medical or dental treatment; 37 percent stopped saving for retirement; 35 percent used credit cards to pay for daily living expenses; and 18 percent took distributions from their retirement accounts.

Pawlak credits his wife's job and money-management skills with keeping them financially afloat. By using savings, they have been able to keep their credit pristine and qualified to refinance their house at a lower interest rate. Their 24-year-old hearing-impaired daughter works as a grocery clerk and lives with them.

"She can't afford to move out and be on her own," he said.

"We've made so many cuts just to make ends meet," said Pawlak, an amateur photographer who has launched a side

business, Pixel Perfect Memories, which restores and transfers photos, negatives and slides into digital media. "I am in the process of reinventing myself. I have to wonder, at the age of 48, have I become obsolete in the new world order? I really don't know anymore."

Supreme Court Struggles Over Workplace Harassment Standard

By Jonathan Stempel

WASHINGTON | Mon Nov 26, 2012 3:25pm EST

(Reuters) - Fourteen years after deciding that employers can be liable for workplace harassment by supervisors they employ, the U.S. Supreme Court on Monday appeared to struggle with an issue left unanswered: who qualifies as a supervisor.

A decision in the case against Ball State University, brought by a black catering assistant named Maetta Vance, could clarify how readily harassment victims may hold deeper-pocketed employers accountable under federal law.

Several justices questioned where best to draw the line, a task made harder by the agreement of the parties arguing in court that the standard set by the 7th U.S. Circuit Court of Appeals in Chicago in dismissing Vance's case was too strict.

In that June 2011 ruling written by Judge Diane Wood, considered one of its more liberal members, the 7th Circuit said that to be a supervisor, an employee must have the power to hire, fire, demote, promote, transfer or discipline the victim.

Three federal appeals courts have adopted this standard, while three others have said day-to-day oversight is enough to result in liability. A definition proposed by the Equal Employment Opportunity Commission resembles the latter standard.

At Monday's oral argument, Chief Justice John Roberts suggested to Vance's lawyer Daniel Ortiz that the 7th Circuit standard might prove workable.

He posed a scenario in which the most senior of five employees assigned to work in a single room gets to choose the background music, and tells a colleague: "I know you don't like country music; if you don't date me, it's going to be country music all day long.

"I would have thought, under your theory, that means that senior employee is a supervisor," Roberts said. "I would have thought the benefit of the 7th Circuit was that you don't have to go on a case-by-case basis."

Some justices suggested other scenarios, including whether a person becomes a supervisor by having authority to control a thermostat, or decide which employee must work in the only office without air conditioning.

In contrast, Justice Elena Kagan suggested that the 7th Circuit test might be too lenient on employers.

She said, for example, that a university could be freed from liability if a professor subjected a secretary to "living hell, complete hostile work environment on the basis of sex," solely because the secretary could not be fired by the professor, but rather by the head of secretarial services.

SLIDING SCALE

Vance, a black catering assistant at Ball State in Muncie, Indiana, who prepared everything from boxed lunches to formal dinners, had claimed she faced racial epithets and threats of physical harm at work.

Many of her problems stemmed from her dealings with Saundra Davis, a white woman she viewed as a supervisor. She said general manager Bill Kimes, also white, did not protect her and treated other workers better.

Vance said Ball State eventually retaliated against her complaints by making her a "glorified salad girl" who cut vegetables and washed fruit, despite a recent promotion.

Justice Samuel Alito suggested that this might not be enough to subject Ball State to liability.

"What is the most unpleasant thing that Davis could have assigned?" he asked. "Chopping onions all day, every day?"

Ortiz said the standard was not that precise, and that courts would have to use a "sliding scale of negligence" to review harassment claims.

He said a person who oversees a victim's work and can "instill either fear into the victim (or) control the physical location of the victim" would qualify as a supervisor.

INCOMPLETE ANSWER

Gregory Garre, arguing for Ball State, said the 7th Circuit standard was not a "complete answer," and that a harassing employee whose control of a victim's work meaningfully aided the harassment could subject an employer to liability.

But he said that Davis, under any definition, did not qualify as a supervisor, and therefore that Vance must lose.

With the parties in agreement that the 7th Circuit test was too restrictive, some justices suggested possible concern about having taken the case to begin with, given that the Supreme Court does not generally issue "advisory" opinions.

Alito asked "why shouldn't we just remand" to more fully develop the record, while Justice Antonin Scalia said, "There's nobody here defending the 7th Circuit" in the courtroom.

The federal government officially supported neither party, suggesting that the similar standards proposed by the EEOC and the 2nd U.S. Circuit Court of Appeals in New York might be appropriate.

"Control over daily work activities is where we would draw the line," Deputy Solicitor General Sri Srinivasan said.

Several women's and civil rights groups supported Vance's appeal, while the U.S. Chamber of Commerce, the National Retail Federation and various conservative groups supported Ball State.

A decision is expected by the end of June.

The case is Vance v. Ball State University, U.S. Supreme Court. No. 11-556.

(Reporting by Jonathan Stempel; Editing by Howard Goller and Cynthia Osterman)

U.S.

Severance Agreements: Mandatory Requirements for Valid Releases

In this age of layoffs, employees are often presented with severance agreements when terminated.  These agreements typically require individuals to release all potential employment law claims, including age discrimination claims under the Age Discrimination in Employment Act (ADEA), in exchange for severance. 

The Older Worker’s Benefit Protection Act (OWBPA), part of the ADEA, is designed to protect the rights and benefits of older workers and imposes mandatory requirements for waivers of ADEA rights.  Oubre v. Entergy Operations, Inc. 522 U.S. 422, 427 (1998).  Among these requirements, is the requirement to provide employees who are terminated in a group termination (more than one employee) with OWBPA disclosure information at the same time they are given the severance agreement. The purpose of the OWBPA’s informational requirements is to provide an employee with enough information regarding the termination program to allow the employee to make an informed choice about whether or not to sign a waiver agreement.  29 C.F.R. §1625.22(f)(1)(iv).

Attorneys reviewing severance agreements should carefully scrutinize the OWBPA disclosure information provided to the terminated employee.  In order for an employee to validly release ADEA claims, the waiver releasing such claims must meet all of the strict, mandatory OWBPA requirements outlined in the statute and regulations.  29 U.S.C. §626(f) and 29 C.F.R. §1625.22.  These requirements include, among other things, information about the “decisional unit” or group of employees from which the employer selected employees for termination; the job titles and ages of those terminated and those kept by the employer; and eligibility factors or selection criteria the employer used to make the termination decisions.

In our experience, terminated employees often do not receive the required OWBPA disclosure information or the information they receive is inadequate.  For example, and among other requirements, the decisional unit disclosed may not be the actual group of employees the employer looked at when making its termination decision; or the job titles disclosed are not the job titles the company actually used; or the disclosure information may not include everyone who was terminated, including your client.  Our firm and Dorene R. Sarnoski Law Office were successful in challenging and invalidating the waiver/release agreements signed by employees nationwide in Peterson v. Seagate US, LLC, 2008 U.S. Dist. LEXIS 42179, No. 07-2502 (D. Minn. May 28, 2008).  The court found that the release agreements were invalid as a matter of law because they failed to meet all of the OWBPA mandatory requirements when the disclosure information did not include the job titles and ages of all employees who were terminated, including one of our clients.  The court found that, “[i]t may be that the inadvertent omission of a particular employee would be enough to affect one other employee’s decision to sign the release.”  Id. at 6.

3 Tips for Job-Seeking Boomers Hoping to Combat Age Discrimination

By Ritika Trikha for U.S. News and World Report

Posted: September 28, 2012

Recently, the research and consulting firm Millennial Branding firm teamed up with the career networking site Beyond.com to survey more than 5,000 job seekers about their job search. And they found that Baby Boomers -- folks in their late forties to sixties -- are having the toughest time finding jobs compared to other generations.

According to the study's findings, Boomers are searching the longest compared to Generation X or Gen Y. In fact, 25 percent of Boomers have been hunting for jobs for more than a year, while only 17 percent of Gen X and 10 percent of Gen Y have waited more than one year to land a job.

Even more importantly, 65 percent of Boomers feel employers have discriminated against them because of their age.

These results aren't a huge shocker -- there are plenty of reasons why employers might be wary of bringing older folks on board.

"They cost too much, might not seem relevant with the times, or don't fit with the corporate culture (if it's a young startup for instance)," suggests Dan Schawbel, a Gen Y expert and founder of Millennial Branding.

So what can you do about it? Schawbel offers some tactful tips for older folks looking to combat age discrimination: 

1. Don't give away your age in the resume. Schawbel suggests you pull up your resume and get rid of any work history that didn't take place in the last 10 years.

Next, it's time to do away with any college graduation dates and "potentially eliminate all dates," Schawbel says. He also suggests you downplay your job titles. "Especially if they're a sign that you are older, such as an EVP title," he says.

Bonus tip: "On your LinkedIn profile, don't include your picture if it portrays you as looking old," Schawbel adds.

2. Keep your skills current. This is a given -- no matter how many years of experience you've had in your field, there's always more to learn. Technology is changing rapidly and this impacts every industry.

Show employers that you're eager to adapt and keep learning by seeking out certification and classes on the latest software, database, or whichever application bolsters efficiency in your field. The educational media site Open Culture offers a great comprehensive list of 500 free online educational resources to help you stay relevant.

3. Networking is your best bet. As Boomers, you've developed a larger network over the years than any other generation. Use this to your advantage by "tapping your network," Schawbel says. It's "the best path to finding work." In fact, in their study, Schawbel and his team found that Boomers are job searching online more than younger generations, and that "they are especially using LinkedIn."

If you're not leveraging both online and offline networks, you're missing out on huge opportunities. "It's important that [Boomers] use all of their resources in order to get referrals," Schawbel says. "It's their biggest advantage over younger workers."

Walmart Worker Wins $1.5 Million for Verbal Abuse by Boss

By:  Sylvia Hsieh, Posted October 26, 2012 at http://blogs.lawyers.com/2012/10/walmart-worker-wins-1-5-million-for-verbal-abuse-by-boss/

As Walmart employees stage their first retail-worker strike across the country, a 42-year-old former assistant manager has won a $1.5 million lawsuit for being mistreated by a store manager.

Meredith Boucher claimed she was verbally abused for six months between May and November 2009 when she worked as an assistant manager of a Walmart in Canada.

Boucher’s lawsuit accused store manager Jason Pinnock, 32, of calling her a “[expletive] idiot,” a “gong show” and “stupid” and that he made her count items in front of others to prove she could count.

“I didn’t eat. I was losing weight. I was throwing up blood, I was sick to my stomach all the time,” Boucher said.

The jury awarded her more than she originally sued for.

In California, five female Walmart employees are suing for gender discrimination individually, after the U.S. Supreme Court struck down a class action lawsuit brought by 1.5 million female employees against Walmart – the largest sex discrimination lawsuit in history.

Currently, employees are striking against Walmart’s attempts to “silence, retaliate against workers for speaking out for improvements on the job,” and are threatening to walk out on Black Friday, which is one of the biggest shopping days of the year.

Boucher’s attorney, Myron Shulgan of Shulgan, Martini & Marusic, said he was happy for his client.

“She championed the cause for workers and indicated that corporations will be made to respond to improper treatment of employees,” Shulgan said.

5 Free Ways to Get a Job Using LinkedIn

By:  Susan Guneliu, posted on August 20, 2012 on www.lifed.com

Looking for a job? If you work in a professional field, then LinkedIn is a great place to find your next career. Just open a free LinkedIn account, create your profile, and get active by publishing content and joining the conversation!

Of course, it’s not quite that simple, but you can follow the five tips below to boost your chances of finding a job using LinkedIn. It’s the most popular social networking site for professionals with hundreds of millions of users, so with patience and persistence, you can make the necessary connections to open new doors to employment opportunities.

1. Make Your Profile Stand Out

When you create your LinkedIn profile, make sure you include as much information as you can. Use all of the sections available to you. Most importantly, lead with your strengths. Make sure the information at the top of your profile is most relevant to the type of job you want to get. Use keywords in your title and profile description, so it’s easier for people to find you when they search for users with those skills.

Once you’ve created a comprehensive profile, take some time to search for people you know and make strategic connections. When you connect with someone on LinkedIn, they are considered a First Degree connection, and all of their connections become Second Degree connections for you. It’s these degrees of connections that help you expand your own LinkedIn network and your exposure by introducing you to a larger audience. Post content, comment on content published by other users, and in time, you’ll build meaningful relationships with other users. You never know what opportunities those relationships might uncover!

2. Get Recommendations

LinkedIn Recommendations are like testimonials of the work you can and have done. They’re a form of social proof that didn’t exist 10 years ago, and you’d be crazy not to use them. How do you choose new products to buy? Do you ask friends and family for testimonials and referrals? Most people seek out opinions from people they know when they’re making important decisions. The same holds true for hiring managers. Reach out to your LinkedIn connections and ask people who you’ve worked with to write a recommendation for you. Be sure to reciprocate and write recommendations for your connections, too! LinkedIn is not a one-way community.

3. Join Groups

Search for groups related to the type of job you want to get and join groups that are active. If a group is very small or no one posts anything to a group, then it’s not worth your time. You can join up to 50 groups with a free LinkedIn account. Once you join a group, not only can you participate in the conversation, but you can also connect with all of the other members of the group. Suddenly, your LinkedIn network has grown significantly! More connections equate to more opportunities to find a job.

4. Search for Jobs

Did you know that companies post jobs to LinkedIn constantly? You can search through those job postings using a wide variety of search criteria. Just visit the Job Search page, enter your search criteria, and you’ll instantly receive relevant results. Some job postings allow you to apply for the job without leaving LinkedIn. When you find jobs you’re interested in, apply for them. When you find companies that interest you, be sure to follow their LinkedIn Company Pages so you get on their radar screens and can stay on top of news and updates from those companies.

5. Create Job Email Alerts

To save time, you can automate your job search using LinkedIn. Simply create email alerts so you automatically receive an email when jobs that you might be interested in are posted to LinkedIn. It only takes a few seconds to create an email alert, and you can create as many as you want.

To create an alert, sign into your LinkedIn account, and conduct an advanced just job search using all of the search criteria that you want. In the results screen, you’ll see a +Save link, which appears on the right side of the page above the first search result. Click the +Save link, enter a search name into the provided text box, and select how often you want to receive email alerts. You can choose to receive email alerts when new job postings match your job search criteria on a daily, weekly, or monthly basis. When you receive an email that includes a job that’s right for you, follow the link to get all the details and apply.

Research shows that the vast majority of corporate hiring managers use social networking sites, including LinkedIn, to find new employees. Follow the tips above to create a killer LinkedIn profile that makes you irresistible to recruiters.

10 People at Work You Should Avoid Like the Plague

From the website Life'd, www.lifed.com, posted August 16, 2012

Most companies have employees that are difficult to manage and challenging to work with, but did you know that some of those negative personalities are extremely common? They’re not specific to certain industries or types of work. Instead, they can be found everywhere.

The reasons why some employees are allowed to continue these negative behaviors is a mystery to most workers, but you’ll probably have to deal with them on a daily basis at some point during your career. Sometimes, they can make it very difficult to do your job.

We can all agree that working with challenging co-workers is frustrating, and many people have quit their jobs to get away from team members who make their lives miserable. Don’t get caught up in their ugly traps. Recognize the warning signs of the most common people you should avoid at work and avoid them like the plague!

1. The Gossip

Every office has one — the person who knows all the details about each employee’s life both inside and outside the office. The simple fact that The Gossip knows so much demonstrates how much time he spends collecting dirt rather than doing his job. Don’t get your hands dirty, too. Stay away!

2. The Complainer

Does everything stink? The Complainer thinks so. This is the person who can find the negatives in every situation. Whether the boss wants to launch a new initiative or Bob who sits two cubes away is taking Friday off, The Complainer has something to say about it and it won’t be nice.

3. The Contagion

“Good grief, she’s sick again!” Who knows if she’s really sick, a hypochondriac, or an aspiring actress, but one thing is certain — there is always something wrong with her. You want to stay away from The Contagion so you don’t get infected!

4. The Faker

On Seinfeld, George Costanza was the ultimate faker. These are the people who are quick to tell you how busy they always are, yet they never seem to really do anything.  How do they get away with it? You’ll have to wake George up and ask him. He’s sleeping under his desk.

5. The Flirt

Can’t they wait until after hours? Both male and female employees can be guilty of flirting in the office, and it’s never appropriate. Keep your hands to yourself and avoid the “innocent” attentions of the opposite sex while you’re in the office. It can only lead to problems, and you don’t want to taint your own reputation by making it seem like you’re okay with The Flirt’s behaviors.

6. The Busy-Body

Unlike The Gossip, The Busy-Body operates with a sole purpose: to catch employees doing anything that they’re not supposed to do. The Busy-Body might be a hired-gun under the orders of an executive who’s out to cut staff or rid the team of a specific player, or The Busy-Body might be self-appointed. Stay away or you might be next on The Busy-Body’s report.

7. The Steamroller

The Steamroller has one goal in life — to move up the corporate ladder at all costs. That means The Steamroller could throw anyone under the bus at any moment if it means furthering his career or bolstering his reputation. Don’t get caught under his feet, because he won’t stop to help you.

8. The ROAD

In the military, there is a term used to describe people who are just biding their time in their jobs: Retired-on-Active-Duty (ROAD). Whether a person has gone ROAD because they are actually nearing retirement or they’re biding their time until a better job offer comes along, they’re little more than a warm body in the office. They ignore their responsibilities, and other people end up picking up the slack. Don’t let their bad habits rub off on you. After all, they’ll be gone soon, and you’ll still be picking up the pieces.

9. The Wolf Crier

Yes, there are problems in the workplace and fires that have to be put out, but The Wolf Crier believes that every task assigned to her is a dire emergency. Don’t jump to her screams of panic unless they’re warranted.

10. The Bully

Yes, there are bullies in the workplace, too. These are the people who like to get everyone else to do their work for them. They each have their own ways to put the pressure on lower-level employees. Don’t succumb to their bullying ways. You’re not in elementary school anymore, so stand up for yourself.

While these aren’t the only challenging personalities you might encounter at your job, they are likely to cross your path at some point in your career. As mentioned, learn how to politely avoid their traps, and you’ll leave work a bit happier each day.

Pension Plan Found to Be Discriminatory on the Basis of Age

PRESS RELEASE from the EEOC
10-22-12

EEOC Wins Summary Judgment on Liability in Baltimore County Pension Case

Pension Plan Found to Be Discriminatory on the Basis  of Age

BALTIMORE - A federal judge has granted summary judgment  against Baltimore County in favor of the U.S. Equal Employment Opportunity  Commission (EEOC), the federal agency announced today.  In so doing, the judge found that Baltimore  County's pension plan, known as the Employee Retirement System (ERS), violates  the Age Discrimination in Employment Act (ADEA) because the plan is inherently discriminatory.  U.S. District Judge Benson Everett Legg also  denied Baltimore County's motion for summary judgment.  

The EEOC initially filed suit against Baltimore County in  September 2007, charging that Baltimore County discriminated against Wayne A.  Lee, Richard J. Bosse, Sr., and a class of similarly situated employees at  least 40 years of age by requiring them to pay higher pension contributions  than those paid by younger employees (Case No. BEL-07-2500, filed in U.S.  District Court for the District of Maryland, Northern Division).  The EEOC also named various county labor  organizations as defendants who must negotiate with Baltimore County to  effectuate the changes sought in its lawsuit.  In January 2009, the Court awarded summary  judgment in favor of Baltimore County.   

After the EEOC appealed, the Fourth Circuit Court of Appeals  vacated the entry of summary judgment and remanded the case to the District  Court to decide whether Baltimore County's pension plan is supported by permissible  financial considerations (EEOC v.  Baltimore  County, 385 F. App'x 322,  325 [4th Cir. 2010]).  The District Court  rejected Baltimore County's argument that the Supreme Court's decision in Kentucky Retirement v. EEOC, 554 U.S. 135 (2008) excused the pension practice.  Noting that Baltimore County "was given an  opportunity to conduct full discovery, including a comprehensive 30(b)(6) deposition  of Buck Consultants, the actuarial firm that has been responsible for ERS since  its creation," the District Court found that Baltimore County had failed to bring  forward non-age related financial considerations that justify the disparity in  contribution rates between older and younger workers. The next phase of the  litigation will determine damages.

"It is pretty rare that any plaintiff can win any claim  against a pension plan," said EEOC General Counsel David Lopez.  "While some may have thought the Kentucky Retirementdecision spelled the  death knell for this case and others like it, our perseverance paid off in  limiting the impact of that decision.   The EEOC is prepared to vigorously litigate these cases, where necessary,  to ensure compliance with the law."

EEOC Regional Attorney Debra Lawrence said, "The county made  older employees pay more than younger employees for the same retirement  benefits, without any financial justification. Older employees felt the impact  of this discrimination in every paycheck.   Because more money is taken out of older employees' paychecks to fund  their retirement benefits, they receive less pay than younger employees doing  the same job.  With the court's decision,  we are putting an end to this unlawful practice."

This  resolution is the latest in a series of systemic suits the EEOC has brought against  public employers alleging age discrimination in the provision of retirement  benefits.  In several related  cases against Minnesota state agencies, the federal agency challenged early  retirement incentive plans that denied health benefits for those employees who  chose not to retire earlier than age 55.  The Eighth Circuit agreed that the plan  violated the ADEA.  In a case against  an Arizona school district, the EEOC challenged a retirement plan that granted  more compensation for unused leave to younger employees than to older  employees.  These cases settled. 

The EEOC enforces federal laws prohibiting employment  discrimination.  The EEOC's Philadelphia  District oversees Maryland as well as Pennsylvania, Delaware, West Virginia and  parts of New Jersey and Ohio.  Further  information about the Commission is available at its website, www.eeoc.gov .

US Department of Labor launches virtual Workplace Flexibility Toolkit during National Disability Employment Awareness Month

From:  U.S. Department of Labor, October 11, 2012

WASHINGTON — The U.S. Department of Labor has launched its online Workplace Flexibility Toolkit to provide employees, job seekers, employers, policymakers and researchers with information, resources and a unique approach to workplace flexibility.

Workplace flexibility policies and practices typically focus on when and where work is done. The toolkit adds a new dimension — an emphasis on flexibility around job tasks and what work is done.

Funded by the department's Office of Disability Employment Policy in partnership with the department's Women's Bureau, the toolkit makes more than 170 resources easily accessible, particularly for workers and job seekers with complex employment situations, such as parents of young children, single parents, family caregivers, mature workers, at-risk youth, ex-offenders, and individuals with disabilities, including veterans with disabilities and people with HIV/AIDS.

"Workplace flexibility is a universal strategy that promotes an inclusive workforce and levels the playing field for people with disabilities," said Kathy Martinez, assistant secretary of labor for disability employment policy. "These resources and unique approach will help all workers with complex employment situations become more productive."

The toolkit, which can be accessed at http://www.dol.gov/odep/workplaceflexibility/, points visitors to case studies, fact and tip sheets, issue briefs, reports, articles, websites with additional information, other related toolkits and a list of frequently asked questions. It is searchable by type of resource, target audience and types of workplace flexibility, including place, time and task. New information will be added to the Workplace Flexibility Toolkit as it is identified.

The launch of the toolkit coincides with National Disability Employment Awareness Month, an annual observance to raise awareness about disability employment issues as well as to celebrate the many and varied contributions of America's workers with disabilities. This year's theme is "A Strong Workforce is an Inclusive Workforce: What Can YOU Do?" Visit http://www.dol.gov/odep/ to keep track of NDEAM activities.

Managing Mental Health At Work

From:  The Wall Street Journal, By Melissa Korn
August 28, 2012

John Binns, a partner in the consulting practice at U.K.-based Deloitte LLP, assumed his career "would be finished" after he took a two-month leave in 2007 to treat a severe bout of depression.

When he told his bosses, they assured him that they would support any effort to get him back to health and working again, encouragement that the 54-year-old Mr. Binns calls "massively instrumental in speeding up my recovery." Still, milder symptoms had festered for nearly a year before a worsening of his condition forced him to come forward.

"There was no culture of talking about mental health or recognizing that some of our best and brightest people, statistically, would have a mental-health issue," he says.

That's not uncommon, and it's becoming problematic for companies as an increasing number of adults seek treatment for psychiatric disorders. While firms appear eager to support employee wellness initiatives, managers are wary of getting too deeply involved in staffers' private health issues. Firms can open the door by offering free, confidential hotlines or generous leave policies, but they can't force employees to volunteer details of their conditions.

Most workers have at least a few colleagues who struggle with depression or anxiety. More than one in four American adults has a diagnosable mental-health disorder, and one in 17 has a serious disorder such as schizophrenia or bipolar disorder, according to the National Institute of Mental Health. But chances are their co-workers—and managers—have no idea who they are.

Intentionally or not, "corporations encourage a climate of keeping things under wraps," says Dr. Jeffrey P. Kahn, a clinical associate professor of psychiatry at Weill Cornell Medical College in New York.

The Americans with Disabilities Act requires that companies provide "reasonable accommodation" for employees with disabilities. For someone with a diagnosed mental illness, such accommodations may include anything from offering flexible work hours to allow for weekly therapy sessions, to reassigning the employee to a role with fewer deadlines. The HR office coordinates the effort, generally without ever telling the boss why such accommodations are being made.

Prudential Financial Inc.  offers an employee assistance program, training for managers to spot distress among employees, health clinics that screen for mood instability and more. Still, the company recommends employees stop short of telling managers about their diagnoses, says Ken Dolan-Del Vecchio, vice president of health and wellness. "We don't want managers to be acting as surrogate counselors," he says.

Meanwhile, DuPont is training managers to identify signs of distress in workers, though conversations with a boss about a diagnosis "would never be encouraged," says Paul W. Heck, global manager of employee assistance and WorkLife services. Managers who do identify distress are asked to remind employees of the assistance program, which can offer free counseling.

Deloitte's Mr. Binns brought together a group of company executives and mental-health experts in late 2008 to create Mental Health Champions, which taps unofficial confidants for employees struggling with mental-health or emotional problems. Mr. Binns estimates that 50 to 60 people in his office seek help each year. The "champions" aren't trained medical professionals, but they can provide details on available support and managing disclosure.

Complicating such efforts are employees' fears that disclosing a mental illness will derail their careers—a valid concern.

Details about a serious mental illness are fair game when researching a job candidate, says Dr. Patricia Cook, chairman and CEO of Cook & Co., a Bronxville, N.Y., executive search firm. Such psychological troubles are "reasons for red flags," she says, and can raise questions about potential future success.

Mentions of depression or obsessive compulsive disorder, which Dr. Cook, a licensed psychologist, calls "diagnostic titles du jour," are a bit less worrisome.

Symptoms of some disorders may even be helpful in the office, some say. A person with obsessive-compulsive disorder, for example, could be seen as a perfectionist with a few quirks.

Dr. Cook once considered a candidate for an executive-level position whose prior supervisor alerted her to a diagnosis of schizophrenia. The candidate was eliminated from the shortlist; she says she provided an "ego-acceptable excuse" without disclosing specifically that it was because of his mental illness.

Rep. Jesse Jackson Jr. (D., Ill.) is facing calls to withdraw from the November ballot following his announcement earlier this month that he suffers from bipolar disorder. Mr. Jackson withheld details of his diagnosis for months, possibly because he was haunted by the political implosion of Thomas Eagleton, whose depression helped kill George McGovern's 1972 presidential aspirations.

Dr. Kahn once treated a manager who didn't submit insurance claims for his therapy sessions, fearing the details would make their way back to his employer. Upon receiving a promotion to a more senior position, the man finally sent in those claims. Executives may be more comfortable disclosing their mental-health histories, Dr. Kahn says, because they see themselves as "immune from adverse effects, which they largely are."

Dr. Rich Chaifetz, CEO of employee assistance program provider ComPsych Corp., says client companies are only told how many employees utilize the service, or how often. They might break down the population by gender, age or issues with which they're dealing, but employers aren't told who called in, or what they sought help with.

Federal and local laws protect people with disabilities, including serious mental illnesses, but employers "can always comment on somebody's actual observed performance, behavior [and] interactions in the workplace," says Katharine Parker, co-head of the employment law counseling and training group at Proskauer Rose LLP.

Gabe Howard worked in information technology at a large Ohio company when he was diagnosed with bipolar and anxiety disorders in 2004, spending several days in the hospital after having suicidal thoughts. Thinking his leave wasn't unlike time off for surgery or family needs, he openly discussed the reason for his absence.

The fallout was immediate: One co-worker said that Mr. Howard would have succeeded at committing suicide had he really wanted to die; another accused him of ditching work. He was eventually let go after supervisors complained about his absences and even questioned his diagnosis. He now works as a mental-health advocate and speaker.

Bob Carolla, director of media relations for the National Alliance on Mental Illness, recommends against disclosing a mental-health issue to a manager, if possible, and certainly not in a job interview. "It's not a skill or part of the qualifications that an employer is looking for," he says.

Most of the time, anyway. Fifteen years ago, when Mr. Carolla was hired by NAMI, his own history with depression, he says, was "a big selling point."

Employee Rights To Fight Workplace Abuse Raised In 2 Supreme Court Cases

From:  The Huffington Post, October 2, 2012

WASHINGTON -- The Supreme Court, in the term that began Monday, will rule on at least two disputes that could have a major impact on how employees fight alleged mistreatment by their employers.

In the two cases, to be heard later this fall, the justices will consider who constitutes a "supervisor" for whose harassing actions an employer can be hold responsible and whether employers can cut off possible class actions by offering full settlements to the initial plaintiff.

Vance v. Ball State University asks precisely who counts as a "supervisor" in a workplace setting. Prior Supreme Court cases have held that an employer can be held liable for harassment or related retaliation by one of its supervisors under the Fair Labor Standards Act. The question is how much authority an employee needs to be considered a "supervisor" -- enough to hire, fire, promote, demote or discipline the victim or just enough to manage the victim's daily work.

Lower courts have split on the issue. Some have decided that people don't have the legal right to sue their employers because they suffered harassment at the hands of a person who lacked the power to fire or demote them.

Other courts have seen it differently, ruling that people who are vested with what the Equal Employment Opportunity Commission calls the authority to "direct and oversee their victim's daily work" count as supervisors. Thus, their employers can be held liable for their bad acts under Title VII of the 1964 Civil Rights Act.

In the case before the Supreme Court, Maetta Vance alleges that Saundra Davis, her co-worker in Ball State's catering department, threatened, slapped and directed racial insults at her. According to Vance's Supreme Court brief, Davis, who outranked her, had "authority to direct Vance's and other employees' work."

At the time, Vance was the only African-American employee on the Muncie, Ind., university's catering staff. She alleges that Davis and another employee, Connie McVicker, "created an environment of physical intimidation and racial harassment." After Davis allegedly slapped her, Vance claims Davis cornered her in an elevator and threatened her, saying, "I'll do it again." Davis also allegedly used terms like "Buckwheat" and "Sambo." Vance claims that McVicker "regularly" used a highly offensive racial slur to refer to Vance and to the black students at Ball State. Vance also alleges that McVicker "openly boasted of her family's connections to the Ku Klux Klan."

In fact, Indiana has a long history of Ku Klux Klan activity. As recently as 2010, the FBI investigated a case there in which a six-foot-tall cross was burned on the lawn of a white couple who had adopted a black child.

The Supreme Court oral arguments in Vance v. Ball State are scheduled for Nov. 26.

The second employment case deals with "collective" lawsuits under the Fair Labor Standards Act. At issue is whether an employer's offer to satisfy all of the initial individual plaintiff's claims effectively ends the suit, thereby preventing the plaintiff from seeking to turn her single case into a collective case such as a class action.

In Genesis Healthcare Corp. v. Symczyk, Philadelphia nurse Laura Symczyk alleges that the company violated overtime laws for years by deducting from her pay a full 30 minutes for lunch even when she didn't take 30 minutes to eat and get back to work. Before Symczyk could formally ask the court to certify her case as a collective action, the company offered her a full settlement of her individual claims -- $7,500 plus costs. Instead of settling, she began the proceedings to create a collective action.

At the Supreme Court, Genesis Healthcare argues that its offer of a full settlement for Symczyk resolves the case. Business groups like the U.S. Chamber of Commerce agree. The Chamber's litigation arm asserts in its amicus brief that companies settle cases like this precisely to avoid them turning into class action suits, which can produce onerous jury awards of millions of dollars on behalf of thousands of employees.

Symczyk's lawyers, however, argued successfully in lower courts that unless workers can keep the door open to potential collective status, employers could essentially "pick off" potential plaintiffs by offering them settlements one by one before the judge could certify any collective case.

This case also has enormous potential ramifications for lawyers who specialize in class action lawsuits. The huge awards can mean huge attorney fees, so the lawyers have a vested interest in letting them go forward even if settlements have been offered.

Oral argument in Genesis Healthcare v. Symczyk is set for Dec. 3.

The Supreme Court will most likely decide both cases by the end of its term in June 2013. In the meantime, it may add other workplace issues to the docket.