Alan Schorr’s Employment Case of The Week ending June 14, 2013

Sadie v. City of Cleveland, — F.3d —-, 2013 WL 2476729 (6th Cir. (Ohio)), June 11, 2013

It is a complete coincidence that the most interesting Case of the Week comes from Ohio two weeks in a row. Last week was Cincinnati, this week is Cleveland. In Sadie v. City of Cleveland, the Sixth Circuit continues a long line of cases from all around the US, including New Jersey, holding that mandatory retirement ages and other age limits do not violate anti-discrimination. Although these cases have consistently protected public entities from liability, they continue to surprise and disappoint me. Forgive me, but I need to rant a bit about this one.

Joseph Sadie and four other retired police officers filed suit alleging that their forced termination at age 65 violated the Equal Protection Clause of the US Constitution, the Federal Age Discrimination in Employment Act (ADEA), and the Ohio age discrimination statute. It would seem a simple analysis to determine that when an employer sets an age limit and literally fires you the minute you celebrate that birthday, it is blatantly discriminatory on the basis of age. And that is precisely what happened here. Regardless of experience or performance or physical ability, the plaintiffs turned 65 years old and were fired and forced to accept retirement benefits. They argued that the terminations were clearly based only upon their age, and therefore must violate the anti-discrimination laws and the US Constitution.

Not so fast. It seems that the ADEA contains an exception that allows local and state governments to set a mandatory retirement age for firefighters and law enforcement officers. 29 U.S.C. §623(j). Since the federal and Ohio laws expressly permit the discrimination against older workers based upon their age, the plaintiffs argued that this must, therefore, violate the Equal Protection Clause of the US Constitution. Not so fast. The Sixth Circuit ruled, as has every other court addressing this issue, that:

In a case such as this, where no suspect class or fundamental right is implicated, we apply the rational-basis test and sustain the government action in question “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the [government’s] actions were irrational.” quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).

By applying the “rational basis” test where no “suspect class” is affected, instead of the more stringent “strict scrutiny” test where the statute affects a “suspect class”, courts grant imprimatur to governments to discriminate against their older workers. No court, including the 6th Circuit, takes the time to explain why older workers are not a “suspect class”. Older workers are enough of a “suspect class” to warrant federal and state laws protecting them from discrimination from private employers, but apparently are not “suspect” enough to warrant protection from discrimination by their government.

New Jersey is no better. The New Jersey Law Against Discrimination also provides shelter to governmental agencies who force employees to retire or refuse to hire employees based upon age. The NJLAD also contains a provision prohibiting workers over 70 from bringing an action based upon refusal to hire because of age. Cases like Constantino v. Borough of Berlin, 348 N.J. Super. 327 (App. Div. 2002) and Freund v. Florio, 795 F. Supp. 702 (D.N.J. 1992) are excellent examples of Courts contorting the facts and law in a blatant display of intellectual dishonesty in order to protect the government’s mandatory retirement programs. Judge Sarokin gave us an excellent example in Freund v. Florio at 708-09:

Certain potential purposes of the Faculty Retirement Act may appear to express a naked preference for younger employees or for a characteristic so invariably associated with youth as to sanction discrimination against older employees merely on the basis of their age. For example, providing opportunities for the advancement of younger faculty at the expense of older faculty merely expresses a preference for youth over age. Even under rational basis review, the court finds that such a purpose, standing alone, would be insufficient to justify an age-discriminatory statute. However, there are sufficient purposes served by the statute devoid of such a discriminatory taint to withstand rational basis scrutiny. For example, mandatory faculty retirement policies may open up opportunities for minorities, stimulate performance improvement among the faculty over-all, allow universities to better plan for staffing needs, and avoid the difficulties in evaluating individual performance to determine, on an individual basis, which professors over 70 have become less able to teach or research effectively.

Older workers are a “suspect class” and they need protection of the law. These statutes should be strictly scrutinized rather than Courts ignoring the law and permitting blatant age discrimination to continue. Our Courts would have us believe that it is easier to just fire older people in order to “avoid the difficulties in evaluating individual performance”. That is simply ignorant. Schools evaluate all faculty all the time. And to support such blatant discrimination by stating that this will have a positive effect in that it “may open up opportunities for minorities” is completely hypocritical. Do minorities not age? We wish to open up jobs for minorities so that we can discriminate against them again later when they reach a certain age? These laws are outdated, and we need to find a better way to fashion our retirement plans so that older workers are not forced out of jobs where they are capably performing and thus providing an important service for our governments.

Plaintiffs’ Counsel: Bruce B. Elfvin, Barbara Kaye Besser, and Stuart Torch, Elfvin & Besser Co,. LPA; Dennis J. Niermann;

Defendant’s Counsel: William M. Menzalora, City of Cleveland Dept. Of Law;

District Judge: Dan A. Spolster, U.S.D.J.

Appellate Panel: Martin and Griffin, Circuit Judges; Beckwith, District Judge.