- An Anthropologie employee who was 54 years old when she was hired in 2012 should get another shot at her age bias lawsuit, the 2nd U.S. Circuit Court of Appeals has determined (Davis-Garett v. Urban Outfitters, Inc., Anthropologie Inc., No. 17-3371-cv (2nd Cir., April 8, 2019)).
- Blair Davis-Garrett sued the retailer, claiming an age-based hostile work environment and retaliation, in violation of the Age Discrimination in Employment Act (ADEA) and state laws. Among other things, Garett said she was repeatedly called "mom" by co-workers, despite her protests. And after she expressed interest in promotion to a supervisor job, a manager allegedly told her she was too old and didn't have the stamina for the position. According to Garett, she reported the comments to an employee hotline and was eventually promoted. Supervisors then allegedly retaliated against her, denying her training and a transfer.
- A district court dismissed Garett's claims, concluding that she failed to produce enough evidence to show discrimination or retaliation. Garrett appealed, arguing that the trial court failed to view the evidence in the light most favorable to her — the standard courts must apply when a request for summary judgment is made. The appeals court agreed, vacating the lower court's decision and remanding the case.
The ADEA applies to employers with at least 20 employees and protects workers and job applicants who are 40 years of age and older from age discrimination. The law has been in place for 50 years, but many — including enforcement officials — believe age discrimination is still pervasive in hiring and employment decisions. In response, the U.S. Equal Employment Opportunity Commission warned that it would focus on age discrimination this year. Indeed, the agency filed a court brief in Garett in support of the plaintiff.
Employers hoping to head off legal claims should start with compliance training for managers and supervisors, who are a major cause of federal anti-discrimination law violations, experts say. Going beyond compliance training, research also suggests that unconscious bias training can be successful, especially if it emphasizes that everyone has biases and offers a means for each trainee to recognize and work on their own.
Jonathan Segal, a partner at Duane Morris, suggested at last year's Society for Human Resource Management's annual conference that managers and supervisors be taught to thank an employee for coming forward with concerns, assure the employee making the complaint that the matter will be taken seriously, explain the process and then thank the employee again.
After a complaint is received, HR must consider whether an investigation should take place, Pavneet Singh Uppal and Shayna Balch, partners at Fisher Phillips LLP, noted at that same conference. In most instances, HR can conduct the investigation, Singh Uppal said, but to stand up in court, investigations must be done in good faith and the conclusion reached must be "well-reasoned."