Newspaper liability for age discrimination

Newspaper liability for age discrimination

Stevens, George E

The newspaper industry is not immune from employment-related age bias. Older workers, many employers believe, “have trouble learning new skills or adapting to new technology or procedures; they are less reliable or more prone to absenteeism than younger workers due to health concerns; and with one eye on retirement, they are less motivated to take risks or to succeed than their younger peers.”(1)

Employees, on the other hand, believe that such concerns as pensions, higher salary expectations and corporate down-sizing may cause newspapers to think twice about hiring older job applicants or lead them to fire an aging employee.

Although the newspaper industry’s record for age bias is relatively good, or at least no worse than employment age bias in general,(2) one writer has identified a small but significant “growth trend” in age-related complaints to the Equal Employment Opportunity Commission by newspaper employees.(3) Those complains have involved alleged violations of the federal Age Discrimination in Employment Act (ADEA).(4) The ADEA (along with related state statutes(5)) attempts to encourage employment of older persons by prohibiting arbitrary age discrimination in the workplace.

How does the ADEA impact on newspapers? When have employee lawsuits for age discrimination been successful? How can newspapers avoid liability under the ADEA? These questions are discussed below.

Newspapers and the ADEA: An overview

Because older workers were unprotected by laws then in force,(6) Congress initially enacted the ADEA in 1967. As amended, the Act now forbids an employer with 20 or more employee(7) from discriminations against anyone 40 years of age or older on the basis of that person’s age.(8) Moreover, the Equal Employment Opportunity Commission has taken the position that the ADEA forbids discrimination not only in favor of younger employees but also between protected individuals. “Thus, if a 42-year-old and a 52-year-old both apply for the same position, the employer may not reject either applicant on the basis of age, but must make its decision on some other basis.”(9)

Age discrimination can include unequal treatment with respect to compensation, terms, conditions or privileges of employment,(10) but most often involves a refusal to hire or an attempt to discharge. To establish a prima facie(11) case, a plaintiff who has been refused employment must show that he or she was qualified, that he or she was not hired and that the employer continued to accept applications or hired an applicant with his or her qualifications. The terminated plaintiff ordinarily must show that he or she was satisfactorily performing the duties of the position, that he or she was discharged and that the employer sought a replacement sufficiently younger to permit an inference of age discrimination.(12)

If the plaintiff satisfies those requirements, the burden shifts to the defendant to articulate a non-discriminatory reason for its action. If he defendant is successful at this stage, the burden shifts back to the plaintiff t show that the explanation given was not the defendant’s true reason but merely a pretext for discrimination. As was noted in McConnell v. Thomson Newspapers,(13) a plaintiff may satisfy this third step “by introducing evidence that a discriminatory reason more likely than not motivated the employer, or…by showing that the employer’s proffered explanation is unworthy of credence.”(14) Ultimately, the McConnell court observed, “a plaintiff must prove that…discrimination played a determinative role in the adverse employment action.”(15)

Putting the matter another way, the plaintiff must show that “but for” his or her age, the discriminatory treatment would not have resulted.(16) It must be remembered, however, that a court “does not sit as a super-personnel department that reexamines [a newspaper’s] business decisions.”(17) Therefore, if age is not the basis for a company’s decision, the company can decide to hire or discharge “even if the decision is unwise.”(18)

The ADEA, then, is not a panacea for every problem an older worker faces. Nevertheless, the remedies available under the Act are numerous,(19) and juries tend to sympathize with the plight of an older worker, especially with the plight of a discharged employee. As one commentator noted, “juries frequently view a judgment favorable to the plaintiff…as just another form of severance or retirement pay that the employer easily can afford and that the employee deserves in recognition of his or her years of dedication and service.”(20)

Pretext for discrimination

A plaintiff ordinarily can establish a prima facie case “with relative ease”(21) and the defendant should have little difficulty articulating a legitimate, non-discriminatory reason for its adverse employment decision.(22) The question in most cases is likely to be whether the explanation offered by the defendant is merely a pretext for discrimination. What constitutes pretext is not always easy to determine,(23) but especially relevant is evidence that the plaintiff was treated less favorably than younger workers in similar circumstances, or was replaced by an employee outside the protected age group.

In McConnell v. Thomson Newspapers,(24) for example, the plaintiff was discharged at the age of 50 from his position as the defendant’s chief photographer and was replaced by a 30-year-old reporter/photographer. The newspaper argued that its decision was part of a reduction-in-force and a perceived need for more versatility among its staff members, and maintained that the age of specialization in the newspaper business was coming to an end. Also, the defendant argued that the plaintiff was either unwilling or unable to learn to use a computer.

The court, noting that versatile may be a synonym for young, decided that the defendant had not treated age neutrally in this circumstance. The publisher’s comments about the end of an age could be construed to mean that the organization wanted younger workers, and the observation that the plaintiff could not learn to use a computer was “indicative of a common stereotype about older workers: they cannot keep up with new technologies and must be replaced.”(25) In addition, the court found indicative of a pretextual discharge a statement made by the publisher to an editor, that stories should be assigned to the reporter/photographer to “cover our asses.”(26)

When all employees are treated the same, an age discrimination lawsuit is unlikely to succeed. Consider Bristow v. Daily Press,(27) where a circulation manager unsuccessfully alleged a constructive discharge on the basis of his age (64). The plaintiff argued that he was placed in charge of a district with unusual problems because management wanted him out, and cited among those problems poor collections in two low income areas, turnover of carriers on certain routes, and fluctuating costs. The court, however, found for the newspaper. It observed that no employee is “guaranteed a working environment free of stress,”(28) and decided that his working conditions had not been intolerable. In fact, the court concluded that his district’s problems were not unique and he was not singled out for different treatment. Said the court: “Bristow’s desire for reinstatement to his position belies the claim that intolerable conditions underlay his resignation.”(29)

A plaintiff’s fear that he or she may be replaced by a younger worker cannot support a claim of age discrimination. In Gray v. York Newspapers,(30) a 62-year-old reporter argued that she was scheduled to be reassigned to general reporting because the defendant wanted someone stronger for her courthouse beat, but a 30-year-old entertainment writer refused her position. She then was told she could continue covering the courthouse, but believed she would only be covering that beat temporarily until another replacement could be found. Therefore, she accepted an offer of early retirement, believing that if she did not she would either be demoted or forced to resign.

The court found no evidence “to support this speculative and conclusory allegation”(31) The evidence, said the court, “demonstrates that Gray deliberated her options carefully, and elected an early retirement package which York had no obligation to offer in the first place.”(32) And although Gray may have believed that continued employment would have been uncomfortable, “the law does not permit an employee’s subjective perceptions to govern a claim of constructive discharge.”(33)

If an employee’s perceptions are not sufficient, what evidence could a plaintiff present to support an age discrimination allegation? A demotion prior to discharge could indicate a newspaper’s discriminatory intent.(34) So could statements from independent third parties as to the plaintiff’s competence.(35) Demonstrating the defendant’s pattern or practice of discriminating against older workers is another possibility, as Morgan v. Arkansas Gazette(36) illustrates.

In Morgan, a circulation manager had been terminated at the age of 44 because of his alleged poor job performance and the falsification of circulation figures. The plaintiff disputed the defendant’s performance argument and claimed he was ordered to falsify circulation data by his immediate superior. In finding sufficient evidence to support the conclusion that age was a determining factor in his discharge, the court identified a pattern of employees over the age of 40 who had left the circulation department and were replaced by younger workers. Specifically, it counted nine older displaced workers, a majority, if not all of the older employees in a city circulation department totaling about 30 workers. “While we agree with the Gazette that not all of these changes were necessarily related to age discrimination,” the court observed, “this pattern raises an inference of discrimination….”(37)

Statistical evidence in ADEA cases, however, is not always to the plaintiff’s advantage. As one court noted, “absent any discriminatory intent, discharged employees will more often than not be replaced by those younger than they, for older employees are constantly moving out of the labor market, while younger ones move in.”(38)

A good example of a plaintiff’s problems in this respect can be found in Dale v. Chicago Tribune,(39) where a purchasing manager, discharged at 55, provided a list of 77 management employees, ages 40 to 70, who had left the defendant’s employ from 1982 to 1984. The court found this statistical evidence “riddled with defects.”(40) Listed were all management employees who left for any reason, including death, transfer, promotion, disability, voluntary retirement, voluntary resignation and involuntary termination. With regard to the 18 on the list who had been discharged, the court concluded that the plaintiff “has made no showing that any of these terminations were unjustified.”(41) Perhaps the best that can be said, then, is that disparities should be “large” and accompanied by “significant nonstatistical evidence of age discrimination” for statistical evidence to be helpful.(42)

A problem confronted by some older job applicants is an employer’s argument that he or she is “overqualified” for a particular position. Two cases, Taggart v. Time(43) and Bay v. Times Mirror,(44) provide insights into when this argument could be a pretext for age discrimination by a newspaper.

In Taggart, a print production manager whose position had been terminated applied for a variety of positions with the same company, including editorial production assistant. He was rejected for all, apparently because the employer thought he was overqualified. A trial court found that the plaintiff’s rejection was reasonable because he would not be challenged by the available positions and might seek other employment. But an appeals court rejected this argument, deciding that “overqualified” could simply be a euphemism for “too old.”(45) In Bay, by contrast, an executive had been fired from a downgraded position because he had resisted a restructuring program and was not a “successful worker.” His age discrimination suit was unsuccessful. The court decided that employers could refuse to place employees in positions for which they are overqualified if they have good reasons to believe that overqualification may negatively affect job performance.(46)

One difference between the two cases seems to be this. In Taggart, the defendant simply assumed that the plaintiff would not be satisfied with a position offering lower pay and prestige, while in Bay the defendant had evidence that the plaintiff would not be a successful worker due to his dissatisfaction with company policies.(47) A newspaper should attempt to determine, in situations similar to that in Taggart, whether a job applicant would accept a particular offer, no matter what the applicant’s previous employment. In other words, “[e]mployers can ask employees if they want lower-paying, lower-status jobs without presuming to know what the applicants will do. To the extent that applicants are unhappy and do not perform well in their new jobs, employers can terminate them for job-related reasons rather than for age-based assumptions.”(48)

Finally, it is important to note that the ADEA permits adverse employment decisions for “good cause” or “reasonable factors other than age.”(49) Newspaper employees who photocopied confidential documents,(50) failed to adjust to the management style of new owners,(51) allegedly had a problem with alcohol,(52) and improperly handled an ink fountain on a press(53) were legally discharged despite allegations of age discrimination.

Performance evaluations

Negative performance evaluations are important to the defendant when a court decides whether an employee has been penalized for “good cause” or “reasonable factors other than age.” Indeed, an employer’s record showing that the plaintiff failed to live up to reasonable job expectations usually is enough to justify a discharge or other adverse employment decision.

In Dale v. Chicago Tribune,(54) for example, the defendant had sent three critical memoranda to a purchasing department supervisor. The plaintiff argued, to no avail, that the defendant’s program to reduce costs was not reasonable. Said the court: “There is a complete absence of any showing in the record that Dale’s workload was excessive, that his assignments were unachievable, or that the demands placed upon him were unreasonable.”(55) Moreover, said the court, the record clearly established that the Tribune communicated its expectations to Dale long before he was terminated and the memoranda, along with oral criticism from his supervisor, “indicate that Dale’s performance was not satisfying [the company’s] expectations.”(56)

A case involving a magazine employee, Stein v. McGraw-Hill,(57) also illustrates the value of negative evaluations from an employer’s standpoint. There, a 64-year-old editor began receiving negative evaluations two years before his discharge. “The two years of warnings and poor evaluations given Stein by his supervisors suggest that his performance did not meet their expectations,” the court concluded.(58) Furthermore, it noted that the plaintiff had not provided any positive reports indicating the satisfaction of “top management” to counterbalance those reviews.(59)

Stein also is of interest to newspapers because the criticisms of the plaintiff were based, by and large, on his low productivity as measured by the number of stories he wrote. The plaintiff argued that the defendant had no fixed productivity standard but the court considered that fact to be of minimal importance. The general criterion “that an employee must turn out a quantity of by-line stories comparable with the national average for the magazine’s editors is both a legitimate expectation and an objective manner of evaluation,”(60) it reasoned.

Memos and more formal methods of evaluation cannot simply be used to improperly “create a record” against an employee, however. In Hairston v. Gainesville Sun,(61) a newspaper sports editor filed an ADEA complaint alleging that he had been demoted and denied salary increases because of his age, although the defendant maintained that his poor performance prompted its adverse actions. His subsequent discharge, the plaintiff argued, was in retaliation for filing the original complaint, and the court concluded that his argument could have merit. Prior to the filing of the ADEA complaint, the plaintiff “regularly received above average performance evaluations.” Immediately following, he received numerous unfavorable evaluations and “was subject to increased scrutiny and harassment from his supervisors.”(62) These incidents, then, could be indications of pretext.

Oral statements, too, could be evidence of discriminatory intent. In Newton v. CBS News,(63) the defendant’s 47-year-old employee had been terminated as part of a reduction-in-force. At the time of her discharge, her supervisor allegedly told her: “I am really doing you a favor. I am going to let you go while you still have the time to get a job elsewhere.” The court decided that a jury would have to resolve the question of whether this statement referred to her age or merely to job opportunities in the marketplace, as the defendant had argued.(64) In general, though, oral criticisms alone are not likely to carry much weight with courts if they are made by those who have no authority to hire or fire employees.(65)

Conclusion

“The cases indicate that the ADEA plaintiff tends to be a salaried, nonunion employee rather than an hourly, bargaining unit member. Generally, the ADEA plaintiff will be a member of management, an executive of some type, a supervisor, a staff professional, or a skilled worker.”(66)

That analysis of ADEA plaintiffs in general, published more than 10 years ago, seems to be an accurate portrayal of the typical newspaper employee who brings suit for age discrimination. Such plaintiffs could be more aware of the law than the average citizen, and perhaps have more trust in the legal system than those who bring suit for other kinds of discrimination. Hence, there appears to be a greater likelihood that any potential ADEA plaintiff “will bring an initial charge for an alleged violation…and will continue to press this claim through the legal system….”(67) If for no other reason, a newspaper should be aware of its potential liability for age discrimination, and modify any policies that might adversely impact older employees. The following, in particular, might be considered by a newspaper’s managers:

* Communicate job expectations to all employees.

* Document performance problems, preferably through periodic reviews.

* Avoid age-related critical comments to subordinates, especially if you have the authority to hire and fire.

* Do not presume that older job applicants with impressive employment histories are “overqualified” for an opening.

Notes

1. Carolyn Terry, Shades of Gray. presstime, April 1994, p. 40.

2. See ibid., p. 41. The number of newspaper-specific complaints to the Equal Employment Opportunity Commission is roughly proportional to the industry’s share of the American workforce, but is described in this article as “not bad compared to other industries that place a [high] value on youth.”

3. Ibid., p. 40. Complaints to the EEOC involving newspaper employees rose from 91 in 1990 to 103 in 1993. If the EEOC is unable to resolve a dispute, a complaining party may file a lawsuit seeking appropriate relief. As to the remedies available, see infra note 19.

4. 29 U.S.C.. 621 et seq. Employers are required to post notices prepared or approved by the EEOC, informing employees of their rights under the ADEA. See ibid., 627 and Schroeder v. Copley Newspapers, 879 F.2d 266, 271 (7th Cir. 1989). A single posting may be sufficient. See Morse v. Daily Press, 826 F.2d 1351, 1353 (4th Cir.), cert. denied, 484 U.S. 965 (1987).

5. For an application of a state age discrimination statute to a complaint by a newspaper employee, see Richards v. Detroit Free Press, 433 N.W.2d 320 (Mich. App. 1988), remanded, 448 N.W.2d 351 (Mich. 1989).

6. Age bias has not been punished under common law. Therefore, the only protection available is statutory. See Johnson v. United States Steel, 202 N.E.2d 816, 818 (Mass. 1964).

7. For a discussion of how the 20-employee rule applies to a newspaper, see Lord v. Casco Bay Weekly, 789 F. Supp. 32 (D. Me. 1992). Freelancers are not counted in determining the number of employees. See, in addition to Lord, Frank v. Capital Cities Communications, 48 Fair Empl. Prac. Cas. 1381 (S.D.N.Y. 1984).

8. The Act does permit compulsory retirement of executives and other “high policymakers” who are entitled to retirement benefits of at least $44,000 per year and who have reached the age of 65. See 29 U.S.C 631 (1994 supp.).

9. 45A Am. Jur. 2d 168.

10. For example, the ADEA could apply to such employer actions as demotions or denials of promotion. See Hairston v. Gainesville Sun, 9 F.3d 913, 917 (11th Cir. 1993), and Bristow v. Daily Press, 770 F.2d 1251, 1256 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986). Furthermore, the first amendment does not protect a newspaper against an employment discrimination claim. See Hausch v. Donrey of Nevada, 833 F. Supp. 822 (D. Nev. 1993).

11. Prima facie means the establishment of a “legally mandatory, rebuttable presumption.” Hairston, supra note 10, p. 919.

12. Even if a discharged newspaper employee’s position has been eliminated, damages may still be recovered if the plaintiff was terminated because of age. Essenburg v. Reub Williams & Sons, 42 Fair Empl. Prac. Cas. 1467, 1469 (N.D. Ind. 1986). Moreover, the employee must only demonstrate “satisfactory” performance, even if that performance is sub-standard. See Stein v. McGraw-Hill, 782 F. Supp. 207, 211 (S.D.N.Y. 1992).

13. 802 F. Supp. 1484 (E.D. Tex. 1992).

14. Ibid., p. 1501.

15. Ibid., pp. 1501-02.

16. Although most courts use this “but for” wording, some indicate that age must merely “make a difference” to the employer or be a “significant factor” in the adverse decision. There appears to be no conflict between these standards. See Nina J. Stillman & Edward C. Jepson, Jr., The Age Discrimination in Employment Act: A Banker’s Primer, 100 Banking L.J. 519, 524 n. 24 (1983), and decisions cited therein.

17. Dale v. Chicago Tribune, 797 F.2d 458, 464 (7th Cir. 1986), cert. denied, 479 U.S. 1066 (1987).

18. Bills v. Sunshine Wireless, 824 F. Supp. 60, 64 (E.D. Va. 1993). “The issue is not whether defendants’ personnel actions were unreasonable or whether defendants misjudged [a plaintiff’s] qualifications.” McConnell v. Thomson Newspapers, supra note 13, p. 1504.

19. Among the remedies available are reinstatement, back pay and mandated promotion. See Stillman & Jepson, supra note 16, pp. 521-22; Morgan v. Arkansas Gazette, 897 F.2d 945, 947 (8th Cir. 1990).

20. Thomas J. Piskorski, The Growing Judicial Acceptance of Summary Judgment in Age Discrimination Cases, 18 Employee Relations L.J. 245 (1992).

21. McConnell v. Thomson Newspapers, supra note 13, p. 1502.

22. “Rare will be the case where an employer will be unable to identify some ‘reasonable ground’ other than age to justify the discharge of an older employee.’ Wells v. Franklin Broadcasting, 403 A.2d 771, 773 (Me. 1979).

23. See Francis M. Milone, Age Discrimination: Proving Pretext Under the ADEA, 13 Employee Relations L.J. 104 (1987).

24. Supra note 13.

25. Ibid., p. 1504.

26. Ibid.

27. Supra note 10.

28. Ibid., p. 1255.

29. Ibid., p. 1256. A constructive discharge occurs “when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Pittman v. Hattiesburg, 644 F.2d 1071, 1977 (5th Cir. 1981).

30. 957 F.2d 1070 (3d Cir. 1992).

31. Ibid., p. 1082.

32. Ibid., pp. 1082-83.

33. Ibid., p. 1083.

34. See Essenburg v. Reub Williams & Sons, supra note 12, p. 1470, involving a discharged newspaper advertising manager.

35. See Dale v. Chicago Tribune, supra note 17, p. 464.

36. Supra note 19.

37. Ibid., p. 951.

38. Laugesen v. Anaconda, 510 F.2d 307, 313 n. 4 (6th Cir. 1975).

39. Supra note 17.

40. Ibid., p. 465.

41 Ibid.

42. Stillman & Jepson, supra note 16, p. 536. Such was the situation, in fact, in Morgan.

43. 924 F.2d 43 (2d Cir. 1991).

44. 936 F.2d 112 (2d Cir. 1991).

45. 924 F.2d p. 47.

46. 936 F.2d p. 118.

47. For a good discussion of Taggart and Bay, see Julia Lamber, Overqualified, Unqualified or Just Right: Thinking About Age Discrimination and Taggart v. Time, 58 Brooklyn L. Rev. 347 (1992).

48. Lamber, ibid.. pp. 364-65.

49. 29 U.S.C. 623.

50. McKennon v. Nashville Banner, 797 F. Supp. 604 (M.D. Tenn. 1992), aff’d. 9 F.3d 539 (6th Cir. 1993).

51. Grant v. Gannett, 538 F. Supp. 686 (D. Del.), aff’d mem., 696 F.22d 982 (3d Cir. 1982).

52. Brady v. Daily World, 57 Fair Empl. Prac. Cas. 397 (Wash. 1986).

53. James v. Capital City Press, 742 F. Supp. 347 (M.D. La. 1990).

54. Supra note 17.

55. Ibid., p. 463.

56. Ibid.

57. Supra note 12. A similar case is Summers v. Communication Channels, 729 F. Supp. 1234 (N.D. III. 1990). See pp. 1240-41 of Summers for a discussion of what constitutes legitimate employer expectations.

58. 782 F. Supp. p. 211.

59. Ibid.

60. Ibid., p. 212.

61. Supra note 10. A similar case is Hybert v. Hearst. 900 F.2d 1050 (7th Cir. 1990), where a supervisor admitted that at least part of the reason for memos listing complaints against an employee was to create a record against him.

62. 9 F.3d p. 921.

63. 64 Fair Empl. Prac. Cas. 60 (D.D.C. 1994).

64. Ibid., p. 64.

65. See, in this regard. Oxman v. WLS-TV, 63 Fair Empl. Prac. Cas. 844 (7th Cir. 1993), where a news director’s age-related statement to the plaintiff was not considered evidence of age bias because the director did not have the authority to hire or fire. For a general discussion of the “oral criticism concern, see Frank J. Cavaliere, Derogatory Remarks as Evidence of Discrimination Under the Age Discrimination in Employment Act of 1967, 44 Labor L.J. 664 (1993).

66. Stillman & Jepson, supra note 16, p. 528.

67. Ibid., p. 529. A good example of a newspaper writer who has pursued an age discrimination claim with vigor can be found in Falls v. Sporting News, 834 F.2d 611 (6th Cir. 1987), on remand, 714 F. Supp. 843 (E.D. Mich. 1989), aff’d mem., 899 F.2d 1221 (6th Cir. 1990). The plaintiff was suing over the termination of his sports column, for which he received $90 weekly.

The author is professor of communication at Purdue Univrsity in West Lafayette, Indiana.

Copyright Ohio University Fall 1994

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