Older and Out: Age Discrimination in the Workplace

We’ve witnessed the rise of civil rights, women’s rights, animal rights. Now, with a recession looming, we’re going to get nudged out of our jobs because of age discrimination? We don’t think so. MORE magazine reports.

By Amy Engeler

Because Tilley had already filed, "I didn’t get the chance to give her my usual 30-minute ‘this is why you don’t want to litigate’ lecture," Bangert says. But she took the case, and Tilley proved to be a uniquely motivated and well-organized client. While Bangert expected the usual box jammed with random documents, Tilley arrived at the office with neat files indexed and tabbed (she kept her own copies spread across her dining room table for quick reference). And she promised that several managers and coworkers still on the job would testify on her behalf, but Bangert was skeptical: When the choice comes down to helping an old friend or keeping their jobs, most workers end up making poor witnesses for the plaintiff. In Tilley’s case, however, an HR director, Pam Guntle, delivered a damning deposition against the Journal in which she apologized for having lied previously about whether she had witnessed any discrimination, harassment, or retaliation against Tilley. "I was very fearful of losing my job," Guntle explained at the time. "It was only to protect myself. I have two kids, [and I’m a] single parent." In addition, several current and former coworkers gave depositions helpful to Tilley’s case. Guntle and another coworker, Dee Marsh, told MORE that they were fired two months after giving their testimony. Each says that the reason they were given was misuse of parking privileges. Both women say they filed EEOC retaliation claims against the Journal, but they decided not to pursue the matter further since it would be too difficult to prove. "I didn’t have the time or the money," Guntle says. "But I don’t regret testifying in the Tilley case. What they did was wrong. I’d do it again in a heartbeat." (Repeated calls to Bemis and Jendrusch went unreturned; Jeffrey Johnson, the lawyer who handled the suit for the paper, said his client did not wish to comment.)

Lilly Ledbetter and the Supreme Court

But despite the confirming testimony of coworkers, Tilley’s case soon hit a judicial wall. In June 2007, the Supreme Court issued a landmark decision in a gender discrimination case that pulled the rug out from under plaintiffs alleging all kinds of job discrimination. Lilly Ledbetter, 70, had sued the Goodyear Tire and Rubber Company under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin; she was awarded $360,000 as compensation for receiving at least 15 percent less pay than her male counterparts throughout her career as a plant supervisor in Gadsden, Alabama. Ledbetter had sensed her paychecks were smaller, she said, but had no proof until she received an anonymous letter, just before she retired, listing her salary and that of three male employees with the same job description. Goodyear appealed the decision, and the case made its way to the Supreme Court, which ruled that Ledbetter was not entitled to the money. Writing for the majority, Justice Samuel Alito said that Ledbetter’s claim was "untimely" because an EEOC claim must be filed no more than 180 days after a discriminatory act has occurred.

To civil rights advocates and others, the ruling didn’t make sense. Not only had Ledbetter been in the dark about the pay difference for most of her career, but the disparity also continues to this day, because she draws smaller pension checks than her male counterparts. In a vigorous dissent, Justice Ruth Bader Ginsburg wrote that "the ball is in Congress’s court," urging lawmakers "to correct this parsimonious reading of Title VII."

For its part, the Denver Business Journal had already been arguing that some of the alleged acts of discrimination against Tilley had taken place too long before she made her filing to the EEOC. On November 6, 2007, federal district Judge Lewis T. Babcock granted the paper’s motion for summary judgment and dismissed Tilley’s case. Neither Babcock nor the paper’s lawyers cited the Ledbetter case specifically, but the timing of that highly publicized ruling could not have been worse, Bangert says. "Ledbetter came up exactly when this was going to summary judgment. It did affect my client, and it’s affecting lots of other cases."

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