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Patrick Springer, Published October 18 2011

Lawyers claim blatant discrimination rare in age, gender suits

FARGO – Former TV anchor Robin Huebner’s age and gender discrimination complaint against the station she’d been at since 1985 will be decided in a legal arena where blatant bias violations are increasingly rare, employment lawyers said Tuesday.

Huebner resigned her anchor post at Valley News Live on Monday, and her lawyer said she is considering a lawsuit alleging age and gender discrimination by the station after being replaced in the 10 p.m. newscast by a younger female co-anchor.

Before turning to the courts, workers alleging employment discrimination first must file a complaint with the U.S. Equal Employment Opportunity Commission, or EEOC.

Huebner’s lawyer, James Kaster, said Monday that she filed a complaint with the commission roughly a week ago, but the claim is not a public document.

“Anything in the pre-litigation stage is protected by privacy statutes,” said Christine Nazer, a spokeswoman for the EEOC. “We can’t even confirm or deny the existence of a charge filing.”

A complainant is not prohibited from releasing the document laying out the alleged discrimination, but Kaster so far has declined to do so.

Employees and employers in a discrimination dispute can agree to try to settle the complaint through mediation.

Otherwise, following a 60-day waiting period, complainants who want to pursue their claim in court first must get permission from the EEOC, said Lisa Edison-Smith, a local employment law attorney who is not involved in the case.

Lawyers representing both employees and employers in discrimination grievances said blatant cases of bias are rare today.

“Employers are more savvy than they used to be even five or 10 years ago,” said Tom Fiebiger, a Fargo lawyer who represents employees. “You don’t usually have that smoking gun that says, ‘We have to get rid of all of the old people here.’ ”

Edison-Smith, who usually represents employers, agreed that workplace discrimination cases in recent years usually have centered on more subtle allegations.

In Huebner’s case, “Ultimately she has to prove some form of intent to discriminate,” Edison-Smith said

For instance, someone could allege that they were fired and replaced by someone much younger. Both North Dakota and federal law consider workers 40 and over to be protected from age discrimination.

Therefore, those claiming to be victims of age discrimination must show they were replaced by someone “substantially younger” or outside the protected group, Edison-Smith said.

Fiebiger said, “Historically my experience has been the age cases are more difficult to prove” than gender cases.

Juries seem more willing to find employers guilty of retaliating against an employee who has alleged discrimination, such as termination or demotion, he said.

Kaster spoke of the burdens of proof Huebner must be able to meet in her age and gender bias claims during an interview Tuesday afternoon on the Jay Thomas Show on WDAY-AM.

Because of a 2009 U.S. Surpreme Court decision, age bias plaintiffs must show age was a “determinative factor” for their alleged discrimination. By contrast, those contending gender bias must show their sex was a “motivating standard,” Kaster said.

“At the end of the day, when you unscramble all of the jury instructions, it doesn’t make a lot of difference,” he said of the different evidence burdens.

Last year, the EEOC received almost 100,000 employment discrimination complaints. Race was the most common bias complaint, accounting for 36 percent of the claims, followed by sex discrimination, 29 percent, disability 25 percent, and age, 23 percent.

Of those almost 100,000 cases, the EEOC filed 271 lawsuits on behalf of employees. The vast majority are dismissed or settled, Nazer said.

“We always try to resolve these disputes out of court if we can,” she said.

Readers can reach Forum reporter Patrick Springer at (701) 241-5522