When we think of age discrimination, we usually think of an employee who may already be in their retirement years, but in truth, our age discrimination laws apply to anyone over the age of 40. See 29 U.S.C. § 631(a); Cal. Gov’t Code §12926(b). Which means that even some so-called “Elder Millennials” are now able to assert claims of age-based discrimination.
However, whether an age discrimination case involves the truly elderly or someone just hitting what many of us consider the prime of our professional careers, most age discrimination mediations involve the trifecta of feelings of anger, accusations of betrayal, and the overarching panic of a plaintiff who wonders: “What if I never work again?”
While other types of discrimination cases usually focus on protected characteristics that have been part of someone’s identity for a long period of time, age discrimination can be different. And that is because it is something that one literally grows into and sometimes the individuals who believe they are experiencing age discrimination may not have ever dealt with discrimination or harassment before. What was always a “them” problem, becomes a “me” problem, and it can make it more difficult for them to process what has happened.
With any employment law matter, these kinds of cases are deeply personal to both the employee and, more times than not, the employer. We invest so much of our self-worth in our professional careers and jobs. Not to mention that we often spend more time with our co-workers (yes, even when remote) than with our family and non-work friends.
So having that environment turn hostile or getting demoted or fired feels like a very personal attack, whether or not it was actually intended to be. And for employers, being told they behaved improperly or discriminated against someone can be a tough pill to swallow, especially for business owners who pride themselves on fostering a positive workplace. On both sides, this can turn into anger, which can make it harder to resolve the dispute.
So the attorneys involved in the mediation need to be able to channel the anger that their clients may be experiencing into a more positive emotion. While mediators need to remember that any anger displayed towards them is not meant for them, that they need to allow the parties to vent, and then they need to help guide everyone to a mutual resolution.
Additionally, many employees who bring age discrimination claims have been with their employers for significant amounts of time. Because of their tenure they may also be in senior management positions which they believed insulated them from being terminated or let go. So it isn’t uncommon to hear them express thoughts of betrayal or make statements like: “I gave years to them to be fired for no reason?!?” In the employer room you may be faced with comparable expressions of disloyalty as they argue that a long-term employee that they trusted has now fabricated a claim just because they didn’t like what was a difficult business decision for the employer, such as a change in corporate structure, needed cost cutting, or a stagnating department because the employee had grown complacent in their role. These feelings of distrust can make it harder to bridge the gap between a plaintiff’s demand and a defendant’s offer.
Accordingly, mediators must navigate through these minefields while evaluating how this background information might impact a jury’s valuation of the case.
Another difficult aspect of mediating age discrimination cases is that workers who bring such claims are often the main financial support systems for their families. Unlike many younger employees who are just starting out, these more experienced workers may have children and spouses that they are supporting, as well as parents that they are caring for. They usually have mortgages or large tuition bills for children in private schools or colleges. So it is important for mediators and the attorneys involved to remember that the plaintiffs in age discrimination cases have a lot more on their minds than just what happened between them and their employer, they are also concerned about what will happen to their families that are relying on them and how they will keep up with all of their financial obligations. These underlying concerns of how do I continue to provide and keep up with my debts is exacerbated for individuals nearing retirement age or for workers in industries that skew particularly young, such as the tech and entertainment industries, because there is a real and justifiable fear that they will not be able to find an equivalent position with another employer, at least not quickly, because no one will want to hire them when they can hire someone younger and usually cheaper.
To help resolve these background concerns and fears, Counsel for Plaintiff should discuss these issues in advance with their client and prepare them for the emotions that might come up during the mediation, including potential unfounded feelings of inadequacy or worthlessness. On the other hand, Counsel for Defendant needs to prepare their client for an initially inflated demand and be able to explain why the numbers might not be what one might expect for a similar case involving non-age-based claims. Mediators have to listen to the plaintiff’s concerns, offer encouragement and support where appropriate, and make sure that the settlement negotiations do not get derailed by these “what if” fears.
Furthermore, unlike most employment law mediations where there can be a lot of pressure “to close the deal” and sign a memorandum of understanding or a formal settlement agreement day of, in age discrimination cases you have to refrain from attempting to pressure someone into waiving any of the age specific protections required in such settlement agreements. See 29 U.S.C. § 626(f). First, there are additional protections to make sure that the employee fully understands the rights that they are giving up. And a good mediator should make sure that the plaintiff truly comprehends the general terms of the settlement agreement and that they are, in fact, in agreement with those terms and not just accept affirmations to that effect from their attorney.
Second, when settling age discrimination claims, the plaintiff must be given up to 21 days to consider the final settlement offer. Although this can be waived and they can enter into a settlement agreement without waiting the full 21 days, no one should be pressuring anyone to do so and the plaintiff must understand and appreciate that they have this extended consideration period and that if they do choose to waive it, they must do so voluntarily. Once again, the mediator should make sure that the plaintiff understands this, because it serves no one if the settlement agreement is later found to be invalid.
In addition, age discrimination plaintiffs also have 7 days from execution to revoke their acceptance of any settlement agreement. This reconsideration period cannot be waived, which means that mediators have to make sure that age discrimination plaintiffs are very comfortable with their decision and not likely to suffer “buyer’s remorse” or commit to a decision at the eleventh hour only to change their minds later. Lastly, there has to be additional consideration, on top of what the employee might already be entitled to, to support the waiver of any age-based claims, so mediators need to take special care to make sure that the monetary amounts contained in any such settlement agreements are fair and appropriate.
For younger mediators, one can be faced with the additional challenge of working with more senior plaintiffs who may be less inclined to listen to a third-party neutral who is younger than them. In those situations, remember that the attorneys selected you and suggested you to their clients for a reason, your expertise in the subject matter. If you need to take a moment to convey your experience to the parties to put them in a better mind frame, do so, but remember your job is not to sell them on you, but rather to sell them on settlement, so talk about your experience in a way that also conveys information to them about their case. For example, how verdicts are trending in similar cases or the legal hurdles you know they are going to have to fight. If you are an attorney and you see this happening, remind your client why everyone picked this mediator and that they need to start listening and cooperating with the mediator.
Although many of the skills that make a third-party neutral an effective employment law mediator are equally applicable to age discrimination cases, these types of cases present some unique and challenging problems. Thus, it helps to have specific expertise not only in the applicable laws, but also in how to deal with the various peripheral issues that can arise in these cases. Because these sideline issues are the ones that can end up determining whether a mediation will be successful or not.
