Failing to Correct Known Discrimination May Land Small Business Owners in Court
July 1, 2019
According to Christina Sondermann Capizzi, an age discrimination claim by a retail employee received momentum in the 2ndU.S. Court of Appeals. Initially heard by a district court, the ruling in the case was overturned in favor of the plaintiff, who claimed age-based discrimination. Discriminatory acts mentioned in the case included being called ‘Mommy’ on several occasions, being given undesirable tasks such as working in the fitting room and being transferred to another store more than 30 miles away because older shoppers frequented that store, making it a better fit for her. In addition, when the plaintiff filed a complaint with the company for being told she was ‘too old for a supervisory position, she was promoted to apparel supervisor. The plaintiff also claimed she was given no management training and was criticized for the pace of her work.
Based on the Age Discrimination in Employment Act(ADEA), the company countered the plaintiff's lawsuit, stating that the former employee left and never returned to work after receiving a written warning for violating a company policy regarding shoplifters. More specifically, the plaintiff reportedly spotted a suspicious shopper and immediately called the police about the activity rather than following the procedure.
Why this Case Matters:
According to law, prior discriminatory acts may be considered as background evidence to a discrimination claim or part of ongoing retaliation against an employee, whether or not that employee has formally filed a lawsuit of discrimination with the company. Courts will hold employers accountable for failing to correct or prevent actions that violate the law under ADEA. Under the EEOC, acts of age discrimination are reviewed throughout the hiring process and include job assignments, promotions, and other conditions of employment.
Verbal harassment under the age discrimination act can include being called ‘Mommy’ or other terms designating an age. While it may be innocuous to some, it can be seen as derogatory if it is pervasive, unwanted, or perceived as contributing to a hostile work environment. Even minor veiled or ongoing verbal communications with no intervention by management can be seen as contributing to a hostile work environment and may even provide proof for a claim of retaliation or discrimination.