Law Blog

I’ve read my fair share of odd cases, but nothing ever brings a smile to my face faster than a frivolous lawsuit.

Apparently people really can sue for anything.  A Detroit planning department employee is suing the city because she claims the strong scents from her co-worker’s cosmetics are preventing her from working.  Further details regarding the facts of the case are limited at the moment, but I’m going to go out on a limb here and say the plaintiff is probably nuts.  The employee is alleging the fragrances in her office are in violation of the Americans with Disabilities Act, which, as I stated earlier, seems pretty nuts.

Let’s just try to break this one down a little, shall we?  I’m assuming the employee is suing based on Title I of the Act since that’s the part that deals with employment.  The relevant part of this section would seem to be that workplace discrimination based on a person’s disability includes among other things “not making reasonable accommodations to the known physical or mental limitations of disabled employees.”

In reading that section, two words jump out to me: reasonable and disabled.  These two terms are very general and open for some board interpretation that I’m sure any lawyer worth his salt could probably spin into a lawsuit.  However, in my opinion, not one that can or should be won.

You see, though “reasonable accommodations” could mean essentially anything that can be done to allow a disabled person to do their job.  The caveat is that it must actually be reasonable, in other words, not nuts.  The employee wants all similar scents to be banned from her place of employment.  Which, to make an analogy, would be like using a grenade to kill an ant.  Both are ridiculously overkill.  A more reasonable accommodation would be to just give her a separate office or even just prevent people who wear cosmetics with scents from approaching her (though even that one is pushing it).

Now even if the employee were to agree to this compromise, she’d still have a much bigger problem on her hands: proving she’s disabled.

Call me old-fashioned, unhip, uncool, or whatever it is kids use to describe people who aren’t with it these days, but I really don’t think a person is disabled just because they don’t like the smell of something.  Barring some incredibly rare allergy that renders this particular employee in some sort of pained state, there’s no way she’d be able to convince a judge (though maybe a jury) that she’s disabled.  The only thing she’d be able to prove is how overly sensitive and litigious people have become.  Instead of wasting the time of the court, she should just learn to deal with the little daily annoyances of life because last time I checked there are a lot of them.

Sorry, I’ll get off my soapbox now.  All I’m saying is that there are a lot of more important issues for the court to decide.  And it’s those types of cases that deserve our great justice system’s attention.

With the arrest and recently announced dropped charges against renowned black Harvard professor Henry Louis Gates Jr., the world seems to be once again entrenched in the subject of racial prejudice.  Actually that’s a bit of a stretch.  I seem to recall another semi-important event that may have helped bring the spotlight back on race before this whole Gates debacle.

However, unlike the election of our new black president, the disorderly conduct charge levied by the Cambridge Police Department against the distinguished director of Harvard’s W.E.B. Du Bois Institute for African American Studies probably wouldn’t demonstrate to most people how much our country has evolved since the Civil Rights Movement.  If anything it seems to show how stunted this country can still be in matters of racial tolerance.

The exact details of the case are still subject to debate.  The only fact corroborated by both sides is that Gates was arrested for disorderly conduct outside of his home after Cambridge police responded to a 911 call from a woman stating she saw two black males attempting to break into Gates’ house.  The men were Gates and his driver, and they were attempting to push the front door open because it was stuck in its frame.  Gates eventually got in through the back door when he was confronted by a Cambridge officer.  Gates claims he repeatedly asked for the arresting officer’s name and badge number, and when he followed the officer outside of his home, he was arrested.  The officer claims Gates accused him of racism and refused to calm down after several warnings that his conduct was becoming disorderly.

Well, it’s all moot now because the charge has been dropped.  So we’ll never get to know the juicy details or witness the spectacle of a public trial.

In this humble blogger’s opinion (because I’m sure you’re all waiting with bated breath to hear it), I suspect both sides decided not to pursue the case because it probably would’ve ended up making both parties look pretty bad.  As great as our country’s adversarial court system is, in cases of “he said, she said” it becomes the job of the prosecution and defense to put down the other side.  So in the end, no matter who wins, everyone ends up getting dragged through the mud.

So what’s the point of this post?  Well, aside from giving me yet another chance to hear myself talk, reading this case got me thinking.  Regardless of who was the one actually responsible for escalating the situation, ultimately this case was started because of race and was given the amount of attention it has received because it involved the presumption of wrongdoing due to the race of a prominent scholar.  It really made me wonder, if someone with Gates’ level of achievement can still face such prejudices, how’s the rest of the country faring?  According to the latest statistics from LegalMatch, apparently not so well.

In the last quarter alone, the number of race discrimination cases received by LegalMatch has increased by nearly 50 percent over the previous quarter.  Approximately 30 percent of these cases stem from being fired due to race and over half of them come from employees in the food service and retail industries.  Even more shocking is that the next highest instances of discrimination originate from those employed in the education field.  Stranger still, the statistics regarding gender discrimination almost exactly mirror those regarding race.

It’s a little disconcerting to see these trends.  Perhaps America isn’t exactly the melting pot it’s cracked up to be.  Either that or maybe someone just needs to turn down the burner a little…

LegalMatch just conducted a study looking at age-discrimination issues and found an overall increase in queries over the past 12 months.  Why the sudden increase in people seeking legal help for their age discrimination claim?  And what other trends have recently surfaced in the area of age discrimination law that effect everyday people?

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

In 1967, Congress passed the Age Discrimination in Employment Act (ADEA) to protect U.S. workers age 40 and above from employment discrimination based on age.  However, despite this act, age discrimination is alive and well in the U.S.[1]

According to the AARP, of the 11.1 Million unemployed people as of December 2008, 1.4 Million alone were age 55 and over.[2]  Age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) have recently become one of the fastest-growing discrimination categories in U.S. history since the ADEA act was passed.[3] 

During the past five calendar years, EEOC data reports a 9.3% increase in age discrimination complaints, or over 92,000 complaints nationwide.  Of these, only a fraction of these complaints had merit (15,430) but even with this small number of meritorious complaints damages totaled to $348 Million![4]  Over the past five years ending 5/28/09, nearly 6,000 cases specifically alleging age discrimination have been filed, nationwide, with LegalMatch and are reflective of the general trend. 

And, it’s not just the 40 to 50 year old workers who are making these allegations.  In March 2009, the EEOC settled a lawsuit alleging age discrimination against the Meenan Oil Company in Tullytown, Pennsylvania who terminated a 71 year old sales representative because of his age.[5]  The company settled for $80,000.  This is no different than customers of LegalMatch who inquired about age discrimination and who ranged in age from as young as 40 years old to as old as 85! 

During the past 12-months, the following are the top ten states where LegalMatch customers sought attorneys to represent them with their age discrimination complaints.  Together, all ten states accounted for over half of the age discrimination complaints filed with LegalMatch.

1. CA
2. TX
3. FL
4. IL
5. OH
6. NY
7. AZ
8. TN
9. VA
10. GA

Given our own LegalMatch.com data and the records of the EEOC, we expect allegations of employer’s discriminating against older workers to continue to rise as the U.S. population ages.  Apparently, it is only through private legal actions or through claims filed via the EEOC or both that older U.S. workers will gain protection in the workplace.

[2] Port Lucie Woman Wins $75,000 in Age Discrimination Case 

[3] U.S EEOC Web Site

[4] U.S. EEOC ADEA Claims

[5] Meenan Oil and Litigation

According to LegalMatch.com consumers looking for employment legal help, the following jobs account for the most racial discrimination claims in the past two years, in order of frequency:

1. Professional (law, accounting, architecture, etc.)
2. Education
3. Construction
4. High Technology
5. Retail
6. Transportation
7. Manufacturing
8. Government

Only “retail” and “professional” place in the top 14 jobs by number of employed, according to the Bureau of Labor Statistics. Retail actually tops the BLS’s list. Why the discrepancy?

In 2007 there were over 30,000 racial discrimination claims filed at the US Equal Employment Opportunity Commission. People on the human resources side of the equation were startled at the massive increase-in most cases plus 10%-of new cases compared to the previous year.

Instead of looking at jobs sorting people by how many are employed, the place to look is how many are unemployed. Most discrimination claims, after all, begin after someone has been let go. The 8 jobs listed above are a veritable who’s who of the hardest hit jobs in the economy since 2007. Almost every job on the list, other than government, has lost near or above half a million workers in the past year according to the BLS.

No surprise, then, that these jobs will have a large amount of disgruntled former employees claiming discrimination. Their cases may be warranted too, but all signs point to the massive layoffs of late as the key culprit for rising employment discrimination claims.