Fighting Age Discrimination in the Courts
They fought against companies like Google and Ruby Tuesday, but justice was elusive and incomplete
En español | Jack Gross’ name has become synonymous with the difficulty of fighting age discrimination in the workplace.
In 2004, Gross, then a 55-year-old insurance executive, filed an age discrimination lawsuit against his employer, FBL Financial Group, after he was demoted from his position as claims administration director. Gross’ case was ultimately appealed to the Supreme Court. The landmark 2009 decision not only went against him but established a legal precedent, making it much tougher to bring a successful case under the 1967 Age Discrimination in Employment Act (ADEA).
Before Gross’ case, workers needed to prove only that age was a motivating factor in an action that harmed their employment. Since Gross’ case, employees have had to prove that age was the deciding factor.
Lawyers say that's much more difficult to prove in court, and it has kept many older workers from pressing discrimination cases against their employers.
A decade after the Supreme Court decision, Gross, now 71, has had a lot of time to think. Despite the lingering impact of his case, he still believes he did the right thing. “A lot of people are being hurt based on my case,” he says. “That's my big regret. But if I had to do it over again, I am fairly confident I would come to the same decision today."
The problems started for Gross when he and several other older workers at FBL Financial Group were demoted. Gross did not lose his job, but the title change meant his career would be in a holding pattern, and lesser pay increases would mean his retirement package would be worth less.
"I felt like I was crossing enemy lines whenever I walked into the office."
After Gross filed his age discrimination case, things got rough. He spent the next seven years working at the company as his case wound through the courts, but with no job description and nothing much to do as the company cut him off from his previous work tasks.
"I felt like I was crossing enemy lines whenever I walked in to the office,” he recalls.
For decades before the lawsuit, Gross had eaten lunch with a group of colleagues. Now he ate alone. “I didn't want anyone else to get in trouble for being friends with me,” he says.
The stress began to take a toll on his health, and Gross says anxiety symptoms landed him in the hospital several times. Since leaving the company, Gross has learned to cope with the loss. And he continues to advocate on behalf of the proposed Protecting Older Workers Against Discrimination Act (POWADA), federal legislation that would lower the burden for winning age discrimination cases — essentially overturning the 5-4 Supreme Court decision that bears his name. The act was first introduced in 2009, and Gross says he hopes it will someday become law.
"I have nothing to gain financially at this point,” Gross says. “But a lot of people are being denied justice because of my case. I'd like to see that changed."
The case: Ruby Tuesday
At 59, Floyd Cardwell did not feel like an old man. And he certainly wasn't ready for retirement. But a job interview for a general manager position at a Ruby Tuesday restaurant in Boca Raton, Florida, changed that.
Cardwell, who had 20 years of experience working in and managing restaurants, thought he was a shoo-in for the job, which he said paid around $45,000. He felt the telephone interview before the in-person interview had gone very well. So well, in fact, that a recruiter asked him to fill out a background check release form that included his date of birth in order to expedite the hiring process.
When he arrived at the interview, however, the manager seemed to have lost interest, and Cardwell felt he was trying to get him out the door as fast as possible. Later, the company sent Cardwell an email letting him know that he wasn't hired for the job, explaining that it was attempting to “maximize longevity and minimize premature resignations."
Cardwell took that to mean Ruby Tuesday didn't want to hire him because it thought he would likely stop working soon thereafter because of his age. Cardwell was angry, and he decided to fight. In 2017, Ruby Tuesday paid $45,000 to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on Cardwell's behalf.
Cardwell, who is now 65, is pleased with the settlement, but he says he has faced many more experiences of age discrimination before and after the Ruby Tuesday interview. He is retired, but not by choice. “I have pretty much thrown in the towel,” he says. “I would have much preferred to work many more years."
"I would have much preferred to work many more years."
What's unique about his Ruby Tuesday case, Cardwell says, is not that the company may have been looking for younger employees. It's that it sent an email explaining why he was passed over for the job. Without that, Cardwell believes he would not have won a settlement. He thinks that age discrimination in employment is something most older workers are aware of, but that they live with it without fighting because it's difficult to prove.
The settlement from Ruby Tuesday felt great, Cardwell says, but it did not change much. He was still an older man in need of a job. Absent one, he's had to scale back his retirement plans.
"It's a terrible feeling,” Cardwell says. “It gets you down in the dumps. The bills keep coming. You want to do your part and contribute to your family, but you can't do it. You are being blocked at every direction."
Kathryn Moon and Julianne Taaffe
The case: Ohio State University
From the outside, the case of two instructors who won an age discrimination lawsuit against Ohio State University seems like a great success story for older workers. But Kathryn Moon, 68, and Julianne Taaffe, 64, are not sure the impact of their lawsuit will spur the changes they sought.
In 2014, Moon and Taaffe, both veteran instructors of English as a second language (ESL) at the university, retired early after feeling pressure from administrators who they believed were trying to squeeze out older workers.
With the help of AARP Foundation lawyers and an Ohio law firm, the women decided to sue. In the federal age discrimination lawsuit, Moon and Taaffe said Ohio State attempted to push out older workers by making their work lives miserable. They were passed over for preferred work assignments that went to younger workers, they say. Older workers were referred to by managers as “millstones” and “deadwood,” and one boss sent an email to a colleague that ended up being forwarded to staff members that compared managing the older staff to “herding hippos."
"They made explicit references to our age and the desire to get rid of us,” Moon says. “They wanted a new look."
In 2018, the university settled the instructors’ lawsuit, after the EEOC found there was reasonable cause to believe the university violated the ADEA. Both women received back pay and benefits from Ohio State, and both are again teaching at the university.
Moon and Taaffe say the years spent fighting the university were financially and emotionally crippling. Taaffe and her husband considered selling their home and putting off dental care. She lost 23 pounds from the stress. Moon developed back problems and put off maintenance on her home. But aside from the financial stress, both women say they lost part of their identities when they left work before they intended.
"We are sitting here every day seeing that nothing has changed."
The women are happy to be employed, but returning to Ohio State hasn't been easy. And they are not convinced that what happened to them won't happen to others at the university.
"It was a good thing to get a job back,” says Moon. “But the fight is far from over."
As part of the settlement, Ohio State agreed to put in place policies and staff training to help prevent age discrimination. But the women believe the university is dragging its feet, which makes their personal victory less fulfilling. “We are sitting here every day seeing that nothing has changed and that the university is not willing to do the work that needs to be done to make sure it doesn't happen again,” Taaffe says.
As part of the settlement, Ohio State agreed to review within a year its policies for preventing and investigating discrimination. Moon and Taaffe are concerned that's not happening. In July, the women sued the university for access to records pertaining to the review. A spokesman for the university said “Ohio State is committed to a diverse community, equal opportunity and eliminating discrimination.” While a review of the university's policy for preventing and investigating discrimination is ongoing, an interim policy took effect in August. The spokesman also said the university has instituted a “second-look process” for age-based complaints in the college where the women work.
The case: Google
In July, Google agreed to pay $11 million to settle a federal lawsuit that alleged it discriminated against hundreds of job seekers over 40. If that felt like a victory for older workers, to Brian Reid, a computer scientist who fought a similar battle against the tech giant more than a decade ago, it felt like déjà vu — and further evidence that little has changed in Silicon Valley.
In 2012, Google settled an age discrimination case brought by Reid, who was hired by the company in 2002 at age 52 and laid off two years later. Reid's complaint alleged that he was let go because of his age, even after receiving a good performance review. According to the complaint, his supervisors and coworkers often made derogatory comments about his age and told him his ideas were “obsolete” and “too old to matter.” (He declined to comment on his case against Google.)
Reid, who is now 70 and has continued to work in tech, says he thinks age discrimination remains a significant problem in the tech industry, where aggressive companies value the new and fresh at the expense of the deep knowledge and experience older workers bring. He thinks that culture sometimes leads tech firms to make poor decisions they might not make if more experienced workers were involved.
"It's the nature of engineers to not read history,” Reid said. “Anything that happened before their freshman year in college is irrelevant to them.”
Reid also thinks the go-go culture and high-pressure competitive nature of tech firms is to blame for the value they place on young workers. Managers understand that age discrimination is against the law, Reid asserts, but they don't worry much about it.
"I was told my ideas were too old to matter."
"There is a sense of ‘we are going to do it anyhow, because if we don't do those things, we are going to come in second,’ “ he explains.
Reid said he began to feel age discrimination in his early 50s, before he was hired by Google. Younger colleagues increasingly began prefacing questions to him with condescending explanations of the technical vocabulary. He compared it to mansplaining, the term women use to describe men who explain things in a condescending and overconfident tone.
"I was experiencing ‘youngsplaining,’ “ Reid says. “It was like, ‘Let me, as a person who owns my own skateboard, explain this to you.’ “
Seven years after the settlement with Google, Reid thinks his case has had an impact mainly in the courts; it is often cited when others bring discrimination lawsuits. Yet he doubts it had much impact on the culture of Silicon Valley and age discrimination.
"I think this is a permanent part of the 21st century and the tech industry,” he says. “It's like crime on the subway."
The case: Allegheny County Jail
At 64, Walter Mikulan is near the age when he imagined he would be considering retirement. As it happened, that came much earlier than he planned.
In 2017, Allegheny County, Pennsylvania, paid a $1.15 million settlement to Mikulan, a former major at the Allegheny County Jail who filed an age discrimination case after he was fired in 2013 at 58.
Mikulan, who lives outside Pittsburgh, declined to comment on the specifics of his case, citing a nondisclosure agreement he signed as part of the settlement agreement with the county.
But Mikulan, who worked for nearly 30 years at the jail, says the process of fighting the lawsuit, and of losing his job long before he was eligible for Social Security and Medicare, was life-changing. If he hadn't received the settlement, it also would have been financially devastating.
Soon after he was fired, Mikulan's wife received an ovarian cancer diagnosis, and the couple had to pay for their own health insurance. Mikulan had been making nearly $40 an hour at the jail. To make ends meet, he took a job as a high school security officer for $10 an hour.
"You spend your life working, and then one day you are faced with bankruptcy,” says Mikulan. “Thank God my wife and I are savers, and we had a little money to fall back on. It's a terrifying experience."
Mikulan says he was the first of his friends to experience the end of a career before traditional retirement age and to fail to find a comparable job to replace his income. But he wasn't the last. In time, many of his friends would live through the experience, and Mikulan would talk them through it. “The late 50s, that's a target date to kick you out the door,” he says.
"The late 50s, that's a target date to kick you out the door."
According to his complaint against Allegheny County, Mikulan was pushed out of his job by the warden of the jail. For many of Mikulan's friends, proving age discrimination was much more difficult. Employers are often savvy, he said, and age discrimination is nearly impossible to prove.
Two years after the settlement, Mikulan has not gone back to work, although he has applied for several high-level corrections jobs. He worries the lawsuit may have tarnished his name. Or maybe, he fears, it's his age. He still spends time thinking about his old job and the lawsuit.
"It was rewarding in some ways,” he says. “I can say that, because we won. If we had lost, I don't know what we would have done."