IS “AGE HARASSMENT” ILLEGAL?
Sexual harassment is a well-known and well-litigated matter. Mainstream media write about it often and most employers have policies prohibiting it. But how many have heard of “age harassment” or an age-hostile work environment? Here is what it is about and how to prove it. In a federal circuit court case titled Milan Dediol V. Best Chevrolet Incorporated Donald Clay, a 65 year old man claimed that his manager regularly addressed him as “old motherf****r,” “old man,” and “pops.”
The manager also allegedly gave the more lucrative work to younger salespersons, and on more than one occasion threatened the employee with physical violence. After putting up with this for almost two months the employee stopped coming to work telling co-workers, “I cannot work under these conditions. It’s getting too much for me.” He was terminated for abandoning his job. Not long after, he filed an EEO complaint claiming age harassment discrimination.
The court had to decide whether an employee can claim discrimination on these grounds and decided he could. This court said that an employee establishes a legitimate claim of age harassment if (1) he was over the age of 40 at the time of the incidents; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.
The third element of this prima facie test is the tricky one. The employee must demonstrate that the harassment was objectively unreasonable, e.g., “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the victim’s employment.” The offensive behavior must appear hostile or abusive to a reasonable person which requires examination of the (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee’s work performance.
Like any other case of discrimination, if the employee and the union can prove the allegations, the employee can not only get retroactive pay, but also compensatory damages up to $300,000. If you feel you have been the victim of this kind of behavior by a manager or even co-workers who have done it in front of managers, talk to your union representative about what can be done.
Here is a more recent legal analysis of how to deal with age harassment by another blogger.
(Originally posted on October 29, 2011)