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It’s Critical To Timely Report Age Discrimination

by | Jun 13, 2024 | Age Discrimination, Employment Discrimination, Employment Law, Federal Law Update |

In the realm of employment law, the recent case of Ferrara v. Sterling, Inc., No. 23-0454-CV, 2024 WL 485742 (2d Cir. Feb. 8, 2024), serves as a stark reminder of the importance of promptly addressing discrimination in the workplace. Robert Ferrara, a district manager at Sterling Jewelers Inc., faced a barrage of derogatory comments from his new supervisor, Chris Gullo. Reportedly, Gullo referred to Ferrara as a “dinosaur,” suggesting obsolescence in his management approach, and even went so far as to remark that Ferrara was “hatched,” insinuating antiquity. Moreover, Gullo implied that Ferrara was out of touch with modern management practices, highlighting a generational gap. These comments were purportedly made repeatedly. Additionally, Gullo allegedly asserted that Ferrara lacked the ability to communicate effectively with younger managers and failed to understand the perspective of millennials. Ferrara testified that Gullo ridiculed him for his attaché case with a pull handle and wheels, calling it an “old man’s bag” and mocked Ferrara’s use of the handle as if it were a cane.

Despite Sterling having an anti-discrimination policy accompanied by complaint procedures during the period of alleged harassment, Ferrara chose not to report the misconduct to Human Resources (“HR”) nor through the anonymous “hotline,” specifically designed for employees to report instances of harassment or discrimination. Ferrara explained his choice not to complain by citing a lack of trust in the process at that time. In his own words, he testified that he “[didn’t] trust the process” based on his instincts.

However, after being demoted, Ferrara reported the alleged harassment to HR on September 1, 2017. At that point, the company initiated an investigation by interviewing the coworkers identified by Ferrara who had knowledge of his allegations. Once the investigation started, Gullo never again held a supervisory position over Ferrara. The investigation concluded on January 2, 2018, and Gullo resigned from Sterling in February 2018.

After resigning his employment, Ferrara then sued Sterling for age discrimination.

The case raises crucial questions about employees’ rights and responsibilities in dealing with workplace discrimination and harassment:

What is a legally hostile work environment?

A hostile work environment is a form of workplace harassment prohibited by various federal and state laws, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (“ADEA”). To claim a hostile work environment, an individual must first show that they faced harassment significant enough to alter their employment conditions and create an abusive atmosphere. This assessment involves both subjective perception and an objective evaluation of whether the environment was hostile and abusive. The incidents considered must have some indication that they were motivated by the individual’s protected characteristics, such as age.

Under the ADEA, individuals aged forty and over are protected from discrimination. To establish a hostile work environment claim, it’s not just about personal perception; the conduct must be severe or pervasive enough that a reasonable employee would find their working conditions worsened. Courts consider various factors, including the frequency and severity of the discriminatory behavior, whether it’s physically threatening or humiliating, and if it interferes with the employee’s ability to work effectively.

In determining whether the conduct meets the threshold for a hostile work environment, courts look at the totality of the circumstances. This includes assessing the frequency and severity of the discriminatory behavior, whether it’s physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work. However, isolated incidents, simple teasing, or offhand comments, unless extremely serious, may not constitute discriminatory changes in employment terms and conditions.

In Ferrara’s case, the repeated derogatory comments about his age by his supervisor may have constituted a hostile work environment based on age discrimination and harassment. However, the United States District Court for the Northern District of New York held that because Ferrara tolerated these comments without complaint for over six months, the comments could not be found to be so severe and pervasive as the prevent Ferrara from doing his job – because he demonstrated that he still could do his job. The United States Court of Appeals for the Second Circuit did not reach this issue.

Best Age Discrimination Attorney Blogs on Point:

What is the Faragher/Ellerth defense?

The Faragher/Ellerth defense refers to a legal doctrine established by two Supreme Court cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Under this defense, an employer may avoid liability for harassment committed by a supervisor if it can demonstrate two key elements: (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) that the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. The pivotal question or a court when deciding whether to dismiss the claim during summary judgment review is whether there exists a reasonable possibility for jurors to disagree regarding whether an employer’s response was sufficiently prompt and remedial to absolve it from liability as a matter of law.

With respect to the first element of the defense, Sterling had an anti-discrimination policy with complaint procedures in place at the time of the alleged harassment and promptly investigated and stopped any alleged conduct. As to the second element, Ferrara admitted his failure to report the conduct to neither HR nor the hotline. Further, the Second Circuit Court of Appeals rejected Ferrara’s excuse:

“A credible fear of reporting discrimination must be based on more than the employee’s subjective belief. Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints.”

Id. at *2 (quoting Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001).

Having held that both of the Faragher/Ellerth defense elements met, the Second Circuit affirmed the dismissal of Ferrara’s age discrimination, hostile workplace claim.

The takeaway lesson is to complain immediately about discriminatory actions or harassment lest you lose your right to bring employment discrimination claims later.

Best Hostile Workplace Law Firm Blogs on Point:

What should I do if my boss keeps making fun of my age?

If you find yourself subjected to age-related harassment or discrimination in the workplace, it’s crucial to act promptly. First and foremost, document the incidents of harassment, including dates, times, and specific comments made. Then, follow your employer’s internal complaint procedures, reporting the harassment to HR or another designated authority. If your employer fails to address the situation effectively or if you’re uncomfortable reporting internally, it’s time to seek legal counsel. Consulting an experienced employment attorney, such as Spitz, The Employee’s Law Firm, can provide invaluable guidance and support. At Spitz, we offer free initial consultations to evaluate your case and operate on a no-fee guarantee, meaning you don’t pay unless we win. With our laser focus on only employment law, we’ll advocate for your rights and work tirelessly to ensure you receive the justice you deserve.

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This employment law website is an advertisement. The age discrimination and hostile work environment materials available at the top of the employment discrimination blog page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship for your employment law needs. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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