Sometimes, even others’ unsuccessful discrimination actions can provide very helpful knowledge for those workers who follow. For example, a musician recently lost his age and disability discrimination lawsuit against his employer. However, the musician lost his case because of a very narrow free speech exception that protected his employer. The rest of his case, however, offered many of the pieces one might need in a discrimination complaint. When it comes to getting the most out of the rulings that precede your case, whether those workers won or lost, be sure you have an experience Oakland employment attorney who can provide you with up-to-date knowledge of the law.
The case involved G.S., a drummer in a rock-n-roll singer’s band. Although the singer had not scored a top-40 record or album since 1991, he and the band continued performing live concerts throughout the 2010s. Immediately after each concert, the drummer staffed a booth that sold t-shirts, CDs and other souvenirs.
In 2015, the singer laid off the drummer. The drummer was 61, had suffered a back injury and also was a cancer survivor, a condition which caused him to have incontinence. The singer sometimes referred to the drummer on stage as “Chemo the Drummer” and stated jokingly that the concert tour was sponsored by a brand of adult diapers used by people with incontinence.
The drummer’s case contained several of the required elements that an employee needs in order to be successful in an age discrimination lawsuit. He alleged that he was over 40, that he was harmed by an adverse employment action (termination) and that the employer (the singer) took the action because of the employee’s age. On that last point, it helps if you have proof that you were replaced by someone who was younger than you but lacked your level of qualification for the position. In the drummer’s case, he made assertions that the singer replaced him with a drummer who was younger but was less skilled than G.S.
There are other things that allegedly happened to this drummer that can help bolster an age discrimination case. Evidence of verbal disparagement or being publicly humiliated by your employer can be powerful evidentiary tools in your case. G.S.’s assertions about the “Chemo the Drummer” and “sponsored by Depends” comments are the sort of things that might help many employees.
The importance of the interactive process
Another important key piece of proof can be an employer’s failure to engage in an interactive process when an employee with a disability requests an accommodation. In the drummer’s case, he allegedly asked for extra time to change out of his soiled adult diaper after the concert and before working in the merchandise booth, but the signer refused to engage in the interactive process.
G.S. lost his case, but he lost for a very specific and narrow reason. Although having not had a hit song or album in more than 25 years, the singer remained a relatively popular and well-known figure in the rock-n-roll music world. As a result, the Court of Appeal ruled that the singer’s music was a matter of public interest and, because of that, the choices he made regarding the members of his band were something that “both advances and assists the performance of the music,” which made it covered by the singer’s right to free speech.
So, even though this employee lost, this case is potentially very helpful. Why? Because, in reality, most people who are fired from their jobs as a result of age and disability discrimination are not employed by famous rock-n-roll singers. As a result, when most of us are harmed by age discrimination or disability discrimination at work, our employers’ hiring decisions are not matters of public interest and our employers are not covered by this narrow slice of free-speech protection. If you’ve been harmed the way this drummer allegedly was, you’d probably stand a much higher chance of success in court.
If you have been the victim of age or disability discrimination, defend your rights. Reach out to the Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. We have helped many workers who have been harmed by discriminatory terminations. To learn more about what we can do for you, contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.