Question 1: Prepare a written report that presents a convincing disparate treatment claim that Gus had been intentionally discriminated against on the basis of his age. Do not address the claim as one of disparate impact.
To Whom It May Concern:
This report is being written to claim disparate treatment based on age discrimination on behalf of a client, Mr. Gus Tavus. Mr. Tavus is a 52-year-old male who recently lost his position as a regional center manager (RCM) at The Best Protection Insurance Company (BPIC). As an RCM, Mr. Tavus was responsible for both supervisors and claims specialists within his regional office and directly reported to the vice president of regional claims (VPRC) who then, in turn, directly reported to the senior vice president of corporate claims (SVPCC). Upon the decision to reorganize its claims function, BPIC made the choice to eliminate the four regional offices and the RCM position. This reorganization and elimination led to the creation of five new highly skilled corporate claims specialist (CCS) positions. The new CCS positions were redesigns and upgrades of the precious CCS positions which required enhanced knowledge and skill requirements. BPIC wanted to staff these new positions through internal promotions and asked all the RCMs, including Mr. Tavus, to apply. Unfortunately, none of the RCMs were given the promotion. The promotions were given to claims specialists and supervisors who previously had to report to the RCMs. Two of those were actually ones who had to report to Mr. Tavus. All of the RCMs, including Mr. Tavus, and the other applicants of the new CCS positions have one major characteristic in common. This characteristic being that they were all over the age of 40. This leads to where this claim of disparate treatment based on age discrimination comes in.
According to the Age Discrimination in Employment Act (ADEA) of 1967, there is a two-fold, explicit prohibition of discrimination against those who are 40 years-old and older. Heneman, Judge III, and Kammeyer-Mueller (2015) state that the ADEA makes it unlawful for any employer “‘…. to fail to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s age’” (p. 69). This law does not stop there in regards to the prohibition of age discrimination. The same authors continue by stating that the ADEA makes it unlawful for any employer ‘“…. to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age’” (Heneman, Judge III, & Kammeyer-Mueller, 2015, p. 69). Mr. Tavus believes that a violation of this act has occurred in his particular situation. This attorney believes that this could most certainly be the case, which is why this report is being written. Mr. Tavus’ situation not only shows a violation of this act, but is a display of the four factors of disparate treatment.
The first factor is shown in the fact that Mr. Tavus is a member of a protected class of individuals. This can be seen in the identification of Mr. Tavus being over 40-years-old and the violation of the ADEA. The second factor is shown in the fact that Mr. Tavus was asked by BPIC to apply for the job because he was a previous RCM which proved that he qualified for one of the new CSS positions. The third factor is shown in the fact that Mr. Tavus was denied the promotion from RCM to CSS despite being qualified. Finally, the fourth factor is shown in the fact that the position remained opened and then was offered to other individuals that were younger than Mr. Tavus. The presence of these factors can be shown through significant evidence that the promotion process utilized by BPIC is unlawful.
Upon a post-subpoenaed review of documentation and files, this attorney believes that disparate treatment based on age discrimination is apparent. The promotion process was only conducted by the SVPCC and the two MCCs without any input from the VPRC or human resources (HR). Documents showed a lack of a formal, written job description and a lack of a formal internal job posting. Only those RCMs, including Mr. Tavus, and other candidates on a devised, biased list were considered for the position. A review of personnel files lacked any comments that Mr. Tavus lacked the skills required for the new CSS position. Mr. Tavus has always been an excellent employee with above-average appraisal ratings. Finally, a formal interview with the VPRC showed that he had not been consulted throughout the promotion process about Mr. Tavus’ qualifications and was completely shocked when Mr. Tavus was not offered the promotion. It is with this evidence and plea this attorney asks, on Mr. Tavus’ behalf, that the courts recognize the presence of disparate treatment based on age discrimination and bring BPIC to justice.
Sincerely,
Bruce Davis, Attorney
Question 2: Present a convincing rebuttal, from the viewpoint of BPIC, to this disparate treatment claim.
To Whom It May Concern:
This is a report in response to the claim of disparate treatment based on age discrimination by Mr. Davis on behalf of Mr. Gus Tavus. Here at BPIC, it is believed that Mr. Davis’ claim is unwarranted and does not correctly depict an accurate picture of the situation that has occurred with Mr. Tavus’ position. BPIC would like to offer a rebuttal to correct some of the misconceptions presented in Mr. Davis’ report.
First, BPIC wants to deny that there was a presence of age discrimination in regards to Mr. Tavus’ position. As an organization, BPIC chose to reorganize and eliminate its regional offices that led to the elimination of the regional center manager (RCM) position. BPIC felt that this position was not longer needed because BPIC was able to create a new claims specialist (CSS). With the creation of this new redesigned and upgraded CSS position, BPIC felt that its needs would be better met and that it could fill these positions through a process of internal promotions.
The SVPCC and two MCCs of BPIC compiled a list of appropriate candidates from current employees that they felt would be well suited and qualified for the new position in terms of knowledge and skills. BPIC requested that Mr. Tavus and the other RCMs formally apply for these positions so that they could be considered and would not lose their jobs completely. BPIC also requested from some of the other employees who currently held other positions to apply as well. Mr. Tavus, the other RCMs, and the other candidates who applied were carefully considered based on their knowledge, skills, and past performance appraisals in their personnel files. The VPRC was not included in these interviews because the SVPCC and the two MCCs wanted to avoid any bias. Once all candidates were carefully considered on these conditions, they chose to offer the new CSS positions to five claims specialists and supervisors that were from the formal regional centers. It just so happened that these five so happened to be under the age of 40. BPIC assumes this is why Mr. Tavus has sought legal counsel against them for disparate treatment.
Fisher, Truxillo, Finkelstein, and Wallace (2017) state that “[m]ost prior research on workplace age discrimination has focused on disparate treatment, that is, intentional discrimination against older workers” (p. 317). However, this is not to the case in the situation of Mr. Tavus. There are no formal, written comments in any of the personnel files that lead to this allegation of age discrimination. BPIC just simply felt that Mr. Tavus and the other RCMs did not possess the technical and communication skills required of this redesigned, enhanced position. The other candidates proved to be much more adept to be able to meet these requirements. BPIC believes that this allegation is all in Mr. Tavus’ perception of the situation.
In society today, many businesses like BPIC are faced with these allegations because of perception. James, McKechnie, Swanberg, and Besen (2013) state that “[a]ccording to an AARP survey of older workers, many of these legal actions have to do with the perception that older employees were ‘passed up for a promotion or chance to get ahead because of age’ (p. 908). This case of perception is highly problematic. However, this was not the case for this particular situation. It was simply by chance that the candidates hired were under the age of 40 and the candidates not hired were over the age of 40. It was certainly not planned or intentional. Therefore, BPIC makes this plea that the courts not punish BPIC for an accusation that is based solely on perception and assumption.
Sincerely,
Best Protection Insurance Company (BPIC)