FIGHTING AGE DISCRIMINATION

By Tom R. Arterburn Copyright 2010

Okay, maybe you're not "a high-tech whiz kid" any more. Maybe you're not the "techno-guru" you once were. And now upper management is suggesting you may not be "the right fit" for the company's future projects.

Sound familiar? You may be "a prime candidate" for an age discrimination suit under the Age Discrimination in Employment Act. But before you pursue a claim, prepare for a legal system that can at times be as discriminatory as any public or private sector organization, as one former government employee in St. Louis, Missouri found out.

Armed with a three-ring binder, a few sheets of poster board scrawled with makeshift diagrams, and a couple of well-wishers, accounting technician Albert Blicharski tried to do what many attorneys refuse to do: take on a government agency in an age discrimination case.

As a result, Blicharski, a 58-year-old Polish immigrant and retired USAF Master Sergeant, once again ended up in foreign territory the hearing room of the Merit Systems Protection Board in St. Louis, Missouri, where he encountered a language (legalese) he couldn't interpret, a culture he wasn't comfortable with, and a group of people that considered him an adversary. These opponents were the same supervisors and co-workers he had worked with for many years at the Farmers Home Administration in St. Louis, before they proposed to remove him from his job because of an inability to meet a higher productivity standard instituted two years ago. Blicharski was forced into the hearing unrepresented after calling 15 attorneys in the St. Louis area, all of whom refused to take his case.

Blicharski's story exemplifies how difficult it is for government employees in particular to fight age-discrimination in the current public-sector court system, due to the red tape and continuously changing regulations.

Cathy Ventrell-Monsees, manager of worker equity with the American Association of Retired Persons in Washington, D.C., said similar dilemmas confront anyone claiming wrongful discharge due to age.

"That's a tough claim," said Monsees, a former Equal Employment Opportunity Commission (EEOC) representative, "because you have to show that the motivation for the discharge was to get rid of older employees, and that's a tough motivation to show."

Christine Godsil Cooper, professor of law at Loyola Law School in Chicago, advises her students to look at four areas before deciding to take an age-discrimination case. According to Cooper, to increase your chances of attracting a lawyer to take your case, make sure your claim includes the following components:

1.Make sure the plaintiff (you) is a credible and articulate person who can foster sympathy from a jury.

2.Ensure that you have enough evidence to prove that what happened was due to age.

3.Back up claims with documentation.

4.Look for discriminatory policies on the part of the employer.

Monsees added these situations:

5.A sudden or dramatic change in an employment evaluation.

6.Supervisors threatening older employees with Reduction In Force (RIF) actions or downsizing. According to Monsees, if an RIF or downsizing was under consideration, you should ask the agency to produce documentation pertaining to it and ask which employees were covered by it, etc.

7.Discriminatory hiring processes. "Applicants being told they're 'over-qualified' is now considered a buzz-word for age discrimination." Albert Blicharski was lucky enough to get old, but was not lucky enough to have a salary high enough to attract a lawyer's attention. As a result, and as expected, his administrative hearing was anything but smooth sailing. The proceedings were riddled with relevancy objections from the agency representative, many of which were sustained by the judge. "It's always a mistake to represent yourself," said Cooper. "Judges never treat [self-represented] litigants as well as those with attorneys." This fact is evidenced in the decision against Blicharski, who is a pro se ("lawyerless") litigant. Now he's convinced more than ever that although old dogs can indeed hunt, there's no guarantee they'll catch their prey. "I've called three more attorneys since I received the decision and haven't even received their opinion on my case," Blicharski said.

Tom R. Arterburn is an independent investigative journalist and Director of the Resume Institute www.resumeinstitute.org. He has contributed articles to the Wall Street Journal National Business Employment Weekly, the American Bar Association's Student Lawyer magazine, and regional newspapers.