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Houston solo Dennis Herlong doesn’t hesitate when asked to categorize his most attractive and easiest cases. His answer: age discrimination suits. “Jurors and judges who can’t understand other types of discrimination can understand age discrimination,” says Herlong, who estimates about 50 percent of his practice involves plaintiffs’ employment matters. But Herlong is not alone in this opinion. Many fellow plaintiffs’ lawyers and even opposing counsel who defend companies against employment claims agree. Two factors contribute to the trend. First, the nation’s population is aging. According to the U.S. Census Bureau statistics, 9.9 percent of the population in Texas is 65 years or older, and 12.4 percent are in that group nationwide. Second, recent mass corporate downsizing, such as layoffs at WorldCom, Lucent and even IBM, have led to a jump in the number of age discrimination claims in Texas and nationwide. The numbers support their assertion. In the first three quarters of 2002, the number of age discrimination claims filed with the Equal Employment Opportunity Commission nationwide increased by 19.6 percent over the same period last year, according to the EEOC. The number of claims filed with state fair employment agencies nationwide also has grown over the past year, rising nearly 10 percent. Texas has been no exception. In the first three quarters of 2002, the number of claims filed from Texas with the EEOC rose 13 percent compared to the same period in 2001, and the number of age discrimination suits filed with the Texas Commission on Human Rights climbed 10 percent between Jan. 1, 2002, and June 30, 2002 alone, according to the EEOC, which tracks claims at the state level as well. One reason for the increase in Texas, says employment defense partner Michael Maslanka of Dallas’ Godwin Gruber, is a decision released earlier this year by the 5th U.S. Circuit Court of Appeals that raised the age discrimination stakes in Texas. In that case, Tyler, et al. v. Union Oil Co. of Calif., six employees of the major oil company sued following a work force reduction. The case is significant because the court decided how to apply the Federal Fair Labor Standards Act as it applies to doubling backpay damages in age discrimination suits. “The 5th Circuit finally got in line with the other circuits,” says Maslanka about the ruling. The case marked the first time the 5th Circuit specifically ruled on that issue, although other circuits previously had allowed such doubling. Hal Gillespie, a partner in Dallas’ Gillespie, Rozen & Watsky who represents plaintiffs in age discrimination cases, however, doesn’t want to overstate the impact of Tyler. “I’m glad they did it. But I really just say, ‘Whoopee!’” Gillespie says sarcastically. The doubling of backpay, Gillespie contends, “was just a crumb.” He believes that the more significant decision will come when the courts see fit to also double front pay, the larger figure in most age discrimination claims. For plaintiffs’ lawyers pursuing age discrimination cases in the typically pro-defense 5th Circuit, Gillespie contends, the more important decision came when the U.S. Supreme Court issued its opinion in Reeves v. Sanderson Plumbing (2000). Reversing the 5th Circuit, the high court made it clear that the appeals court could no longer devise its own set of rules that consistently meant upholding summary judgments dismissing age discrimination claims at the trial court level, Gillespie says. As a result, defense counsel spend less time trying to get summary judgments and more time talking settlement, he says. Defense counsel Jonathan Wilson, however, believes Tyler will inspire plaintiffs. “I think it’s going to assist plaintiffs in arguing more forcefully for double damages,” says Wilson, a partner in and chairman of the labor and employment section at Dallas’ Haynes and Boone. But Wilson doesn’t think that all the news from the appeals court is good for plaintiffs’ lawyers pursuing age discrimination claims. Wilson points specifically to a recent U.S. Supreme Court opinion arising from the 11th Circuit. In that ruling, the high court recently decided to dismiss a case that it had previously agreed to hear, leaving tremendous ambiguity, Wilson says. The case, Adams v. Florida Power Corp., raised the question of whether a reduction in work force can be considered discriminatory if the layoff plans have a disparate impact on employees older than 40 or in a protected class. Rather than decide the issue, the high court took a pass for now. Meanwhile, the circuits have split on the issue, and the 5th Circuit has not explicitly ruled on the question. “In a slowing economy, the uncertainty about that question can have a lot of influence,” Wilson says. Defense lawyers concede that, rise or not, age discrimination suits present unique and steep obstacles for their corporate clients at trial, particularly since judges and jurors often are sympathetic to older workers and executives. “I’ll be honest, I’ve lost more than I’ve won,” concedes Maslanka. He contends that employers must be extremely intelligent and well-advised on the front end to avoid ending up at trial with an elderly, fired employee on the stand. “If you have a reduction in force, you have to give out all kinds of demographics,” he says. If an employer isn’t offering more than two weeks’ severance, he says, the company shouldn’t bother with trying to get employees to sign agreements not to sue. Age discrimination cases also can appeal to juror sympathies. “Everyone can relate to losing a job,” Wilson says. “Many of these people have been employed a long time. It rubs up against human nature. Why has this person been let go? Everybody has their parent or grandparent or can relate to one.” That sympathy can even extend to decidedly ungrandfatherly high-paid executives, say jury consultants Mark S. Sobus and Dan Jacks of Decision Quest with offices in Dallas, Houston and a number of other cities nationwide. In their study entitled “Jurors’ View About a New ‘Class’ of Plaintiffs — When the Wealthy and Sophisticated Sue Their Employers,” the jury consultants warn that plaintiffs’ lawyers who assume jurors won’t be sympathetic to high-flying executives who have lost their perch “couldn’t be more wrong.” Neither Sobus nor Jacks returned calls seeking comment. “In most jurors’ minds, a high income or a demand for even more gold in a golden parachute doesn’t really set these plaintiffs’ claims apart from more traditional employees,” the two jury consultants write. “Defense teams that fail to take these factors into account when defending a company against claims brought by an elite employee can quickly find themselves in treacherous waters with jurors.”

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