Minnesota Lawyer
Steven Andrew Smith, of Nichols Kaster, is hearing about of lot of it. There is a lot of restructuring and the like going on in business resulting in reductions in force or layoffs, even from companies that have received federal payroll protection grants, Smith said.
A code word in use to cover age discrimination is to say an employee doesn’t have “enough runway” to suit the business, Smith said. It means, the worker won’t be around long enough to be worth hiring. It’s used by big corporations by “people who should know better but God bless them,” Smith said. “It’s direct evidence.”
The other code word is “energy,” Smith said. He said that when corporations start questioning someone’s energy level, that person is 50 or more years old.
Age and gender discrimination is not confined to blue-collar workers or lower paid professions. Smith’s cases include discrimination in executive-level discrimination. He finds gender, race and age discrimination at the C-suite level. “It’s really attacking systems that have been in place for a long time,” Smith said. Some industries are very clubby about how they do “business,” he said.
For example, women with children are viewed differently if a job involves travel. That’s also an indication that there probably are other discriminatory practices “simmering
on the back burner,” Smith said. In addition, he said, employers aren’t very good at masking disdain for the impact the employee’s pregnancy will have on business.
As is often seen in discrimination cases, claims for reprisal or retaliation follow discrimination cases. Smith finds that many managers aren’t trained very well. “They are always surprised that it’s illegal to retaliate,” he said.
If managers don’t get retaliation, juries do, Smith said. “Juries understand it. Everybody understands it,” he said
Smith also finds that new generations of employees are quicker to speak up about what they see as unfair conditions. Older employees are likely to keep their heads down and wait it out.
But Smith thinks the restructuring decisions currently being made may lead to scrutiny. It used to be layoffs were the result of an “obvious economic situation,” he said. “Now I see companies will have best profit year level ever and still do restructuring.”
“I think the public isn’t buying it. I think the days of assuming a fact finder will find the layoff was for [economic] reasons are over,” he said.
