Discrimination Is Hard to Prove, Even Harder to Fix

By | July 23, 2019

When it comes to lawsuits alleging discrimination, the wheels of justice sometimes turn even more slowly than usual.

“It’s a difficult process, more difficult than it needs to be,” said Jeff Vardaro, a civil rights attorney in Columbus, Ohio. These cases can become complex and expensive, and defendants and their attorneys have incentives to drag them out.

Over the past year or so, I have reported on several suits involving older adults’ complaints of discrimination based on age, sex and disability status, all of which are prohibited under federal law.

Plaintiffs have won some victories: A preliminary injunction, for example, allowed an elderly wheelchair user back into her Manhattan assisted living facility, although perhaps temporarily. But older plaintiffs have encountered defeats as well, including the dismissal of a suit brought by a married couple after a retirement community in Missouri rejected them because both spouses are women.

Mostly, these efforts have involved substantial delay. None of these stories has fully concluded, but here are some updates.

CreditTy Wright for The New York Times

At Ohio State University, two veteran instructors in English as a second language felt pushed out by administrators who made disparaging remarks about age in emails and office discussions.

Both instructors had felt forced to retire in 2014, years before they had intended; many of their older colleagues also were demoted or squeezed out. The two women sued under the Age Discrimination in Employment Act.

Last summer, the university settled the case, reinstating Julianne Taaffe, 63, and Kathryn Moon, 68, with back pay and benefits.

“Every day, I’m grateful to have a job,” Ms. Taaffe said recently. “I’ve read so many articles about how difficult it is to get back into the job market after a job is eliminated, and how often they are eliminated.”

But the women and their attorneys have been frustrated by what they considered inaction on other important elements of the settlement.

The university had agreed to “a review of its policies and guidelines for preventing and investigating discrimination,” including creation of a so-called second-look process.

That would allow workers with age-discrimination complaints to request review by a neutral party if they believed, as the plaintiffs did, that their allegations had been inadequately or inaccurately investigated.

In February, Ohio State notified the women’s attorneys, as required, that the review had begun. But “no one has told us who’s doing it, and how,” said Fred Gittes, whose law firm in Columbus, Ohio, along with the AARP Foundation, represents the women.

The university has made no public announcement about a review and provided no opportunity for students, staff and faculty to participate, he said.

“We had high hopes that Ohio State was ready to take a significant step to prevent this from happening again,” said Mr. Vardaro, who also works at the firm. Instead, a human resources administrator — one described in employee depositions and emails provided to the court as having encouraged age discrimination — received a promotion.

An Ohio State spokesman said the review would yield an interim policy to be announced on Aug. 1, followed by feedback from students, faculty and staff, with a final policy “in the future.” He also said the second-look process had been instituted.

Mr. Gittes called that “a secret process” that “gives us no confidence that the university truly intends to conduct a real policy review or make serious, informed changes.”

“Ultimately, I don’t think anything has changed in the way the university handles and investigates civil rights complaints,” Ms. Taaffe said. The plaintiffs’ lawyers are considering their options.

Mary Walsh and Beverly Nance had planned carefully for their later lives. After investigating several options, in 2016 they put down a deposit at Friendship Village in suburban St. Louis, Mo.

As a continuing-care retirement community, it provided independent and assisted living, plus a nursing home, so that residents could stay within the community as their needs for care increased.

That mattered to Ms. Walsh, a retired AT&T manager, and Ms. Nance, a retired professor. If one of them had to move to another unit because of declining health, the other would remain close by; they could still have dinner together.

“We wanted to be together, no matter what happened,” Ms. Walsh told me a year ago.

Friendship Village, a faith-based but nondenominational facility, initially seemed eager to move them into a two-bedroom apartment costing $ 235,000. Then the staff inquired about the nature of their relationship and learned that, after almost four decades as a couple, they had married in Massachusetts in 2009.

The facility declined their application, mailing to the couple a copy of its cohabitation policy defining marriage as “the union of one man and one woman, as marriage is understood in the Bible.”

Last year, the women brought suit in federal court alleging sex discrimination in violation of the federal Fair Housing Act. If either spouse had been a man, their lawyers argued, the community wouldn’t have turned them away.

In January, a district judge dismissed the case. She cited a ruling in 1989 that discrimination against “homosexuals” is not prohibited under Title VII of the Civil Rights Act of 1964. She noted other cases finding that discrimination of this sort was not prohibited by the Fair Housing Act, either.

Ms. Walsh and Ms. Nance appealed. Then the Supreme Court agreed to hear three cases this term involving alleged employment discrimination against L.G.B.T. plaintiffs. The Missouri case is on hold pending that ruling.

“We believe the district court got it wrong,” said Julie Wilensky, senior staff attorney at the National Center for Lesbian Rights, which represented the women, along with the A.C.L.U. of Missouri and private attorneys. “Being lesbians doesn’t remove Mary and Bev from the law’s protection.”

But for Ms. Nance, 69, and Ms. Walsh, 73, the damage has been done. Both have suffered deteriorating health, and they had to scramble to enter an assisted living facility. “It creates challenges that were exactly what they’d hoped to avoid,” Ms. Wilensky said.

Through her attorney, Ms. Walsh called the dismissal of their case “devastating, but we’re continuing our legal battle and haven’t given up hope.”

A retired lawyer known in court documents only as Jane Doe, disabled by osteoporosis, had for five years enjoyed living at VillageCare, an assisted living facility in Manhattan.

In April 2017, after being hospitalized with complications from a urinary tract infection, she entered a nursing home for rehabilitation. When she was ready to return home in July, VillageCare administrators refused to readmit her because she had begun to use a wheelchair.

State law barred residents who needed wheelchairs or physical assistance to transfer in and out of a wheelchair, they told Ms. Doe and her brother, who held her power of attorney. New York State did have such 40-year-old regulations on the books.

In April 2018, Ms. Doe, her brother and the Fair Housing Justice Center sued VillageCare, three other assisted living communities in the city with similar policies, and the state health department, charging violations of the federal Fair Housing Act and the Americans with Disabilities Act.

They sought a preliminary injunction to allow Ms. Doe, 70, to return to VillageCare while the case proceeded.

New York has since revised its assisted living regulations, removing prohibitions against wheelchair users. That rendered the suit against the state moot, officials argued.

“If that were the case, we’d be dancing in the streets saying we won,” countered Susan Silverstein, a senior lawyer for AARP Foundation, representing the plaintiffs. “What we’re looking for is changes in practices,” including training for assisted living operators and monitoring to ensure that they comply with the revised law.

The judge has not yet ruled on a state motion to dismiss the case. But in September 2018, he granted a preliminary motion, finding that Ms. Doe had “a likelihood of success on the merits” and would suffer “irreparable harm” by being forced to remain in a nursing home.

That allowed her to move back to VillageCare in October. At the moment, after another hospitalization, she’s back in rehab.

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