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Baby boomers not shy about asserting their rights have triggered a new wave of age bias lawsuits, creating a host of legal challenges for employers that may not even be aware that discrimination is going on in the workplace. Employment attorneys say the surge in age bias lawsuits is mainly due to the fact that a large part of the work force is getting older, staying healthier and choosing to work longer. Corporate downsizing, layoffs and rising health care costs are also driving the litigation, along with recent court decisions that have given plaintiffs more legal ammunition in age bias suits. As a result, employers are increasingly landing in court, defending against an older and bolder work force suing over the right to work. Employment attorney Charles Joseph said that he has seen a 50% increase in age bias complaints in recent years. “In the past, older people have thought, ‘Well this is the way it goes,’” said Joseph of New York’s Joseph & Herzfeld. “They didn’t want to take legal action [over a job loss] because they didn’t want to perceive themselves or portray themselves as victims. But I think as employment law has developed and been reported in the media, and as they’ve watched friends and colleagues taking action successfully, they’ve become more assertive about their rights.” Big verdicts noticed Employers’ lawyers also note that recent court cases, along with reports of big verdicts, have put age bias claims on the radar screen when they weren’t there before. “The concept of age discrimination has received far less publicity over the years than other forms of discrimination, such as race and sex discrimination,” said Bob Quackenboss, a partner at Richmond, Va.-based Hunton & Williams. “As a result, the U.S. work force is only now becoming widely familiar with the viability of age bias claims, and we see a resulting increase in claims,” Quackenboss said. Employers have been put on the alert, said attorney Zachary Hummel of Bryan Cave’s New York office, who represents employers in labor matters. “As our work force ages-and I have many clients watching that happen within their work force-practitioners are anticipating what certainly will come, and that is more age-based suits,” Hummel said. “And those of us that do a lot of advising work with clients . . . we certainly are concerned about that because age discrimination claims are difficult cases to defend.” Employers are already taking big hits in court. In Connecticut last year, a chief engineer of Indian descent won an $11 million verdict against General Electric Co. after convincing a jury that he was passed over for promotions and management positions by younger, white males. Mody v. General Electric, No. 3:04 CV 358 (D. Conn.). In Florida, a jury in October issued a $2.3 million verdict for a group of decorated police officers in their 50s who claimed they were passed over for promotion because of their age. Hogan v. City of Hollywood, No. CACE04014128 (Broward Co., Fla., Cir. Ct.). Disparate impact claims David Haase, co-chairman of the labor and employment practice group at Chicago’s Jenner & Block, said a recent trend in age bias cases is employees filing disparate-impact claims, alleging that a company policy has a disproportionate effect on older workers. Such claims have only been allowed for roughly two years, he noted, following a 2005 U.S. Supreme Court ruling giving workers the right to file disparate-impact claims under the Age Discrimination in Employment Act, which prohibits discrimination against workers older than 40. Smith v. City of Jackson, Miss., 544 U.S. 228. In that case, a group of police officers claimed that pay raises were given to younger officers. “There are a bunch of cases that have been brought to test how far that [ruling] goes,” Haase said. One such case, Haase said, is a pending class action against Allstate Insurance Co., which is being sued over a rehiring and restructuring plan that allegedly had a disparate impact on more than 6,000 older workers-many of them sales representatives-who were disqualified from rehire. A federal judge ruled in October that the case will go to trial. EEOC v. Allstate Ins. Co., No. 04-01359 (E.D. Mo.). Haase said such disparate-impact claims have employers especially nervous. “There’s a lot of money at issue. You’re talking about a group of people. It’s not just one person saying, ‘I was fired.’ You’re talking about a group of people,” said Haase, adding that the high court’s Smith v. City of Jackson ruling “raised the stakes” in age discrimination claims. Law firms also have been the target of age bias claims. Last month, a Washington attorney in his 50s filed suit against Akin Gump Strauss Hauer & Feld alleging that he was fired from the firm because he was too old. Gross v. Akin Gump, No. 07 CV 399 EGS (D.D.C.). More than two dozen partners at Sidley Austin are challenging their firm’s mandatory retirement policy in a class action that has been filed by the Equal Employment Opportunity Commission. EEOC v. Sidley Austin Brown & Wood, No. 05 C 0208 (N.D. Ill.). Class action front On the class action front, more than a half-dozen class claims for age discrimination have been filed against employers, including a recent lawsuit against the Federal Aviation Administration. In January, a judge allowed about 800 Federal Aviation Administration employees to proceed with an age discrimination lawsuit that claims an FAA decision to contract out flight-service functions was timed to deny federal retirement benefits to 1,770 flight service controllers who were older than 40. Breen v. Peters, No. 05-654 (D.D.C.). According to the EEOC, the number of age discrimination complaints to the agency has actually decreased in recent years, from 17,400 in 2001 to 16,548 in 2006. But attorneys note that those numbers do not reflect private lawsuits that are filed in state courts, which is where plaintiffs’ lawyers more often choose to go because state laws allow for more in damages. The EEOC numbers also do not reflect the growing number of employees who hire attorneys either just to scare the employer or to investigate their age bias claims without filing suit. “I spend a huge percentage of my time advising companies on how to avoid age and other employment claims . . . and on how to deal with demands and claims that never turn into formal lawsuits or charges,” said attorney Ann Margaret Pointer of Fisher & Phillips in Atlanta. “While the number of federal EEOC age charges is not up dramatically, these numbers of charges may not reflect the comparative number of lawyer-demand letters written on behalf of persons age 40 and older,” Pointer said. Pointer noted that in recent years, she has received more such letters from plaintiffs’ attorneys alleging age discrimination-a claim that has many employers worried. “As a matter of practical reality, I do think employers are very concerned about being able to defend age claims, particularly as they downsize,” Pointer said. Taking it seriously? Plaintiffs’ attorney Gary Phelan of Outten & Golden’s Stamford, Conn., office, whose New York firm has seen a 50% increase in age bias claims in the last year, claims that employers still aren’t taking age discrimination seriously. “We still see comments relating to ‘old timers,’ to ‘slowing-down dinosaurs,’ all those kinds of comments are still fairly common. They’re seen as kind of joking around, that they’re sort of fair game. But those comments certainly come back to haunt employers when people like us become aware of them,” said Phelan. Phelan said he’s seen an increase in age discrimination lawsuits, particularly in the sales professions and the information technology industry, where employers want younger faces pushing their products and more tech-savvy employees up on the latest computer advances. Another new trend is that the age discrimination plaintiff is getting younger, Phelan added. “It used to be those in the late 50s early 60s. Now it’s the early 50s and sometimes late 40s group,” he said. Ralph Dawson, a New York partner in Houston’s Fulbright & Jaworski, said that as the baby boomers increasingly become affected by layoffs, they will increasingly resort to litigation. “That group will want to and need to continue to work,” Dawson said. “And juries find it easier to sympathize with older workers in discrimination suits, because after all, we’re all going to be old someday.”

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