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Proving age bias gets tougher

  • Article by: LORA PABST
  • Star Tribune
  • May 17, 2010 - 3:13 PM

The 61-year-old traveling phone book ad salesman decided he couldn't afford to stay at his job when his company stopped paying his motel bills. Then he found out that the company was still paying lodging costs for younger sales reps.

Last month, Ronald Smith's former employer, Ziplocal of Orem, Utah, agreed to pay $75,000 to settle Smith's complaint that he was a victim of age discrimination on the job.

The Minnesota Department of Human Rights found probable cause that Ziplocal's practice of paying for lodging for younger employees, not older ones, was discriminatory. One Ziplocal employee told state investigators that she was told by the regional director to get rid of several employees, "especially the 'two old coots.'" Smith's complaint was one of 24,582 age discrimination complaints reported to the federal government in 2008, the highest total in 12 years, according to the U.S. Equal Employment Opportunity Commission.

Laurie McCann, a senior attorney with AARP, said that while the number of complaints hasn't been this high since the early 1980s, age discrimination cases are becoming more difficult to prove in court.

"In this country, both in courts and society, we don't view age discrimination as being as serious or wrong as other forms of discrimination, which results in higher ... hurdles for age discrimination plaintiffs," McCann said.

Age discrimination victims used to have to prove their age was one factor when an employer made a detrimental decision, but a U.S. Supreme Court ruling changed the burden of proof for age discrimination cases brought under the Age Discrimination in Employment Act, McCann said. Now, many federal courts say that victims have to prove their age was the only factor in an employment decision.

In Minnesota, age bias cases brought under the state Human Rights Act aren't subject to the same obstacles as federal cases, said Steven Lapinsky, of the Human Rights Department. Unlike federal law, Minnesota has the same standards for proving age discrimination as it does for other types of discrimination.

Ziplocal officials declined to comment on the case but issued a statement saying, "We can assure you that our internal policies have been reviewed, and the company's new management team is fully committed to consistently applying fair employment practices."

Smith, of Virginia, Minn., started selling ads for Phone Directories Company, now called Ziplocal, in January 2007. When he traveled across northern Minnesota, the company would pay for his lodging whenever he had to drive more than one hour from home, according to the complaint he filed with the state.

In October 2007, the company told employees that they had to work out of the Duluth office every day. When Smith asked if his lodging would be provided, he was told no.

The company "told me that the policy had been changed," Smith wrote in his complaint. "I had no notice of a change. ... I could no longer afford my commuting expenses."

After he resigned in 2008, Smith learned that the company continued to provide lodging for sales reps in their 20s and 30s and had refused to provide lodging for a 68-year-old sales rep.

Company officials told state investigators that the new policy only provided lodging for employees traveling two hours from home and that it was applied evenly to all employees. The state's investigation showed that two employees in their 20s were provided lodging even when they traveled less than two hours from home.

In the settlement, Ziplocal denied wrongdoing. The settlement included a confidentiality agreement. Smith declined to talk about the case, but said, "Age discrimination is an ongoing thing throughout the country. Everybody will be in that situation someday."

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