Age Discrimination & ADA Retaliation - Ask HR Wench

One of my readers has a question, y'all. I've edited her email, as it was quite long, but left all the meaty parts intact. Well, HR's definition of meaty anyways.

I am asking this question on behalf of my mother, who is a teacher in an urban school district. For 25 years, she taught 4th grade. Last year, they informed her that she was being switched to 2nd grade. She got the union involved at that time because she has a medical disability with her vision that falls under the ADA - she would have had difficulty reading all the volumes of information associated with learning a new grade level curriculum. The district gave her the accommodation of a laptop which was programmed to basically read the curriculum aloud to her.

The principal at her school throws laws out the window. He puts teachers into positions they are not certified for (i.e. special ed, upper grades, etc). He has fired teachers without following any type of documentation requirements. He includes outright lies on teacher evaluations and sometimes does not bother to observe the teacher before writing the evaluation. He has lost a significant number of grievances from the union as well as multiple lawsuits that the district has had to settle (and pay dearly for).

This principal has informed my mother that she is being moved again, this time into a non-classroom position which will not exist next year. The teachers who had this job all this year have been moved into classrooms, and my mother and a few others were moved out of the classroom into this nonexistent position. The district has decided that anyone in this position will go into a district-wide pool and be farmed out to fill whatever openings come up in the schools over the summer.

Here is the problem: literally every person he is driving out of the school, including some that he did this to in other years, have all been older teachers who are nearing retirement age. Am I correct in thinking they could have a huge lawsuit on their hands for age discrimination?

Also - what are the requirements that determine a hostile working environment - is it limited to things of a sexual nature, or can it be more than that? What constitutes retaliation? If her principal was unhappy with her requesting accommodations last year, could assigning her to a nonexistent job be considered retaliation for that? My mother has documentation of absolutely EVERYTHING that has gone on, however big or small, for the last couple of years.

The first thing I want to tell you is: I have a mom, too. If anyone messes with my mom, justified or not, I want to rip their arms off and beat them within an inch of their life with said arms.

I just finished reading Letters To A Young Teacher by Jonathan Kozol, so your question is very timely. Check out my Amazon.com widget at the top right and you can learn all about this great book.

I'm going to make some assumptions because I don't know all there is to know about this situation. If my assumptions are incorrect, please feel free to comment on the post or send me an email.

What we have here is an institution that, crappy principal or not, is making some changes. A lot of people don't like change, even if it is for the better. If your mom has taught one grade level for a gazillion years, I can understand her not wanting to start teaching in a different one. However, she doesn't get to make that decision - her employer does. If she doesn't like it, she may want to find employment elsewhere. I'm not trying to be uncaring, but this is the reality of being an employee.

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No, sexual harassment is NOT the only type of illegal discrimination that can create a "hostile work environment". Per the EEOC:

Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not "extremely serious." Rather, the conduct must be "so objectively offensive as to alter the 'conditions' of the victim's employment." The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment.

And

Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.

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It sounds like the "non-existent positions", one of which your mom will be in soon, have been around for a while. It also sounds like the "burden" of being in these positions is being shared by more than just one or two teachers on a consistent basis (the roster changes from year to year). It also sounds like even when the roster changes, the ages of those with the "burden" does not. Simply knowing what I know from your email, it doesn't sound like this is retaliation for requesting accommodation under the ADA. I could be wrong. It does sound like that maybe teachers over a certain age are being unfairly targeted for the "farming out".

So, could they have a huge age discrimination lawsuit on their hands? Sure.

The EEOC states,

(The ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.

And

It is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training (emphasis mine).

Do they want to do that? Would they win? Would they *truly* be protected from retaliation? I have no idea. I would encourage your mom and her colleagues to discuss their concerns with a well qualified employment lawyer.

Readers, what did I miss? Wow, this was a long post. I need a nap.