As a civil rights lawyer, I like to say that I am hoping for the day that I am put out of business. Which is another way of saying that I’d like to live in a world totally free from discrimination and harassment, where employees are treated fairly and with dignity on the job. I’m pretty positive that won’t happen in my lifetime, but I am happy to say that over the course of my legal career I think we’ve made substantial progress in some areas of the law.
I don’t think we ever will eliminate sexual harassment from the workplace (boys will be boys and girls will be girls), but at least among large employers (to paraphrase the old ad for Virginia Slims cigarettes), we’ve come a long way, baby. Most big employers have adopted anti-harassment policies and train both supervisors and employees about appropriate conduct on the job. People with disabilities no longer are being shunted off to remote farms like the old Maine School for the Feeble-minded (now called Pineland) although as a society we’re doing a pretty piss poor job of integrating individuals with disabilities into the workforce. And acceptance of gays, lesbians, and transgender people has increased enormously in recent years.
But one area where I don’t think much progress has been made, unfortunately, is in the area of discrimination on the basis of age. Which surprises me in one sense—since unlike race and sex, which are immutable characteristics, all of us grow older by the passing day (though when I look in the mirror I still don’t see the face of a 62-year-old). But one thing I’ve learned over time is that some of the worst discrimination is by people against their own kind. And there’s no denying that we live in a culture that worships youth.
Most employment discrimination cases that get filed are what are called “disparate treatment cases.” That means that the employee claims s/he got fired, or wasn’t hired, or was denied a promotion, because of a protected characteristic—race, age, sex, religion, national origin, disability, or sexual orientation.
However, there is a second kind of discrimination—disparate impact. The Supreme Court recognized soon after Title VII was passed that sometimes policies which appear to be neutral on their face have a discriminatory impact upon a protected group. Some of the earliest disparate impact cases involved awarding jobs on the basis of seniority when black applicants had not been allowed in the workplace in the first place (many of the cases have involved uniformed personnel such as police or firefighters), or height and weight restrictions which tended to exclude women from large numbers of jobs.
Which brings me to Shaw’s, the supermarket chain founded here in Maine which operates throughout New England. Like many supermarkets, Shaw’s employs a large number of employees, many of whom only work part-time. For many of those employees, part-time work jibes with their life schedules—attending school, caring for children or loved ones, and supplementing the family income. But for others, full-time work is most desired—the employees need to support their families, want the health benefits that typically accompany full time employment, and want a greater measure of job security. Not surprisingly, on the whole, full time employees tend to be older than part time workers.
Several years ago Shaw’s decided it needed to reduce its costs—something every employer has the right to do. But how did Shaw’s go about paring down its workforce? When Shaw’s decided to cut 700 jobs, including a large number here in Maine, it decided (except where employees were protected by a union contract) only to cut the jobs of full-time employees; part-time employees were exempted from consideration. So guess who walked out the door first? The older employees.
Last month, several days before Christmas, an Investigator for the Maine Human Rights Commission concluded that Shaw’s had discriminated against its employees on the basis of age when it exempted part-time employees from the layoff decisions. The Investigator concluded that Shaw’s should have given the full-time employees the opportunity to reduce their hours, work for less, or some combination thereof. Shaw’s is expected to appeal the decision, and the case likely is headed for court.
It always saddens me when an employer mistreats its most loyal and longtime employees who helped build the company by rewarding them with a pink slip. Which is why this early Christmas present to my clients after two-plus years of suffering warmed my heart. Now hopefully I can help them to put some food on their plates.