State governments “are still learning there’s an age law,” one attorney said, even though it has been on the books for decades.
It is a stressful thing to sue your former employer for age discrimination.
For nearly four years, as they pursued a federal lawsuit against administrators at Ohio State University and awaited action by the Equal Employment Opportunity Commission (EEOC), Julianne Taaffe and Kathryn Moon worried about their finances, their health and their futures.
The women had worked in the English-as-a-second-language (ESL) program at Ohio State since 1983, teaching students from 40 countries.
“We helped build the program from the ground up,” Taaffe said.
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So in 2009, when a new program director began disparaging them and other veteran ESL staffers while promoting younger and less experienced people, they wondered — despite their consistently first-rate performance reviews — if they had screwed up somehow.
Though age discrimination seemed a likely explanation — Taaffe is now 62 and Moon, 67 — “I couldn’t bring myself to believe Ohio State would do anything like that,” Moon said.
Then came an email in 2010 from their new boss to an acquaintance at another university.
He wrote that he was dealing with “an extraordinarily change-averse population of people, almost all of whom are over 50, contemplating retirement (or not) and it’s like herding hippos.” Then he inadvertently copied one of his own staff.
For years thereafter, experienced ESL teachers faced actions they believed were intended to force them from their jobs.
Junior colleagues not only got promotions, but choice assignments. Older instructors lost their offices and, were reassigned to a cramped open space, shared an insufficient number of computers even as younger colleagues kept their offices and desktops.
The director’s successor continued his policies, and staffers heard him deride veteran teachers as “millstones” and “dead wood.”
“It was part of a strategy to make us uncomfortable and make us retire,” Moon said.
Eventually, more than 20 ESL staffers were squeezed out, their positions threatened with elimination or reclassification at lower salaries. When Taaffe lodged a formal complaint, a university investigation brought no action.
She lost 23 pounds and developed the beginnings of an ulcer. Moon, who said the conflict “felt like a giant knot in the pit of my stomach for months and months,” suffered insomnia and back spasms.
In 2014, both women retired years before they had intended, because they expected to lose their positions and faced prohibitively expensive health-insurance costs if they delayed. Neither could find a comparable position elsewhere.
Recent events have brought some vindication, however.
In November, the EEOC found “reasonable cause to believe” that the women and their older colleagues had been discriminated against, a violation of the federal Age Discrimination in Employment Act, which protects workers 40 and older.
Then, very quietly, on the Friday of Memorial Day weekend, Ohio State announced a settlement.
“The Ohio State University is committed to hiring and retaining a diverse and inclusive work force,” the university said in a statement to The Times. The university denied that it had acted unlawfully and took no action against any employee.
But the university has rehired both women and agreed to back pay and retroactive benefits totaling $203,000 for Taaffe and $237,000 for Moon. It also paid $325,000 in attorneys’ fees to the firm representing the women, and the AARP Foundation lawyers who joined their suit.
More important, the plaintiffs won “prospective injunctive relief,” actions to avert illegal policies in the future. Ohio State has agreed to train human-resources staff to recognize, investigate and prevent age discrimination.
And it will establish a “second-look process,” an independent review of age-discrimination investigations.
“That’s one of the major victories in the case,” said Dara Smith, an AARP Foundation attorney. The two plaintiffs “would not accept the settlement until we reassured them that the university would have to change its policies.”
The settlement could prove important for the more than 5 million Americans who work for state governments and entities. “State and local government employers are still learning that there’s an age law and that it’s applied to them since 1974,” said Cathy Ventrell-Monsees, at the EEOC.
But since a Supreme Court decision in 2000, plaintiffs who bring age-discrimination suits against state employers cannot collect damages, making attorneys reluctant to take such cases. (Plaintiffs can seek damages from private employers or the federal government, however, and, in some cases, from local governments.) “It takes a long time to try these cases, and then there’s no payoff even if you win,” Smith said. The EEOC can sue for damages on behalf of complainants, though Smith said she thought it unlikely in this case.
The Ohio State settlement, however, demonstrates that “it can be worthwhile to bring these claims” against states, she said. “It’s a public reminder that they need to take age discrimination as seriously as they take other forms of discrimination.”
Although the federal age-discrimination law took effect 50 years ago, “age usually gets left out when companies think about diversity,” Ventrell-Monsees said. “If the same supervisors made those comments about race or sex, they’d know trouble was coming.”
Ohio State, for instance, agreed in its settlement to include age as a prohibited form of discrimination on its website. As recently as this past week, some of its jobs pages listed race, gender, sexual orientation and other categories as protected, but not age.
Several administrators there seemed not to grasp the law. Looking through email chains unearthed through the lawsuit, attorneys found statements like this one from the new ESL program director in 2013: Referring to a younger instructor who had left the program, he lamented that older staffers “were squatting on spots that should have been available to young bucks!”
Women appear particularly affected. This past year, the EEOC received 18,376 complaints of age discrimination — “a tiny fraction of what’s likely out there,” Ventrell-Monsees said. Most were filed by women.
In a study, economists sent about 40,000 invented résumés to employers who had advertised jobs, then analyzed which applicants got callbacks. The fictitious job hunters had equally attractive credentials, but different high-school-graduation dates.
The results confirmed the impact of gender. “The callback rate uniformly declines with age,” said co-author David Neumark, an economist at the University of California, Irvine.
It dropped by about 18 percent for middle-aged workers and about 35 percent for older workers. But the age factor proved much stronger for women.
Many countries, including the United States, hope to persuade older people to remain in the work force longer and claim their retirement benefits later. “We do all kinds of things to help people boost their retirement security,” Neumark said. “If you can work a little longer, it’s huge. Your savings go a lot further.”
When older workers get dismissed or pushed out, however, they contend with longer periods of unemployment before being rehired, assuming they are rehired. Their new jobs, Ventrell-Monsees pointed out, often pay less than those they lost. They may have to retire long before they had expected.
But Julie Taaffe and Kathryn Moon are back on campus, hoping their protracted effort will help other older state employees.
Taaffe met with ESL students this past month for the first time since 2014 and was relieved to find her teaching skills intact. “I’m planning to stick around for a while,” she said.