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Over 40 Need Not Apply

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The landmark case for teachers occurred in 1980. Four years earlier, Miriam Geller, a 55-year-old art teacher, had applied for a position in West Hartford, Conn. Geller was hired five days before school started to fill a sudden vacancy. But 10 days into the fall term, she was fired and replaced by an inexperienced 25-year-old who applied for the job after Geller. Geller sued the district, charging that she had been discriminated against on the basis of her age.

The school district defended Geller's dismissal as a costsaving method. It was district policy, the administrators claimed, to hire teachers with less than five years of experience. In Geller's case, the district would have saved about $4,000 in salary the first year by hiring the younger teacher.

Geller's attorney argued that the district policy was discriminatory since teachers with less than five years of experience are usually under age 40. The 2nd U.S. Circuit Court of Appeals agreed.

"In essence, what the court says in the Geller case,'' notes Cathy VentrellMonsees, manager of the advocacy program at the American Association of Retired Persons, "is that you can't set a policy of hiring based on salary when it has an adverse affect on older teachers.''

Because collective bargaining takes the place of individual negotiation in most school districts, Ventrell- Monsees adds, across-the-board policies like West Hartford's inherently discriminate against older, experienced teachers.

"If schools operated like the private sector,'' she says, "a district could say to an applicant, 'This position pays $25,000,' and the applicant could decide whether to take it or not.'' But collective bargaining sets the salary for all teachers based on their years of experience; a district cannot offer an experienced teacher the same salary as a newcomer. If the district hires only the cheapest applicants, it generally shuts out the entire pool of older teachers.

Even union officials acknowledge the phenomenon. "It's very difficult to get hired if you have experience,'' says Nancy Kochuk, spokeswoman at the National Education Association. Attorneys at the Maryland State Teachers Association admit that discrimination in hiring is common, but because the unhired teachers are usually not union members, the union is unable to help them.

The Geller case set a precedent for all teachers over the age of 40, the minimum age recognized by the ADEA. But since the law was enacted, many states have passed age-discrimination statutes that apply to people under 40, as well. Thirty-sixyear-old Donald Stoltenberg took advantage of Maryland's agediscrimination law, which covers anyone over age 18, when he filed suit against the Harford County school district. In April 1986, Stoltenberg, a 13-year veteran, applied for a job in Harford teaching social studies. He was told the district was not hiring, and he was not invited to interview.

A few weeks later, Stoltenberg discovered that the district had just hired four social studies teachers, all with considerably less teaching experience than he had. When he complained to the district, he was told his application was not considered because the district was looking for younger applicants to balance the age of the teaching staff.

"When someone tells you, 'Sorry, you're too old,' at age 36, you have to kind of laugh,'' Stoltenberg says.

Because he was under age 40, Stoltenberg was not protected by federal law. Instead, he filed a claim with the Maryland Human Rights Commission. The commission investigated and found evidence to support his claim. The case was eventually settled out of court.

"By the time of the settlement, I had already started another business,'' says Stoltenberg, who now runs a housing-inspection company in Baltimore. "I wasn't out for revenge. In my opinion, the settlement was less than perfect, but it seemed an appropriate thing to do at the time.''

Teachers who suspect they have been discriminated against have legal recourse. For people over age 40, the first step is to file a complaint with the federal Equal Employment Opportunity Commission, the agency that administers the ADEA. The EEOC has offices in most major cities.

In preparation for filing complaints, teachers should compose a letter asking the school district to explain in writing why they were not hired. Teachers should keep a copy of the letter and send the original to the district by registered mail.

To file a complaint, teachers should fill out a claim form in an EEOC office or write a letter listing their name, age, address, and telephone number; the name, address, and telephone number of the school to which they applied; and a brief description of what happened. "Just a bare-bones statement will do,'' says VentrellMonsees. "Something like, 'I applied for a job on X date with Y school and was told they were not hiring. The next day, I saw an ad in the newspaper saying that the school was hiring. I have reason to believe I was denied the job because of my age.''' Complaints must be filed at the EEOC within 180 days of the date the discrimination took place.

Once the complaint has been filed, the EEOC has two years to investigate and resolve the case, either through a settlement with the school district or a formal hearing before a federal judge. Teachers can expedite matters by calling the EEOC to find out who has been assigned to the case and then checking with the investigator every two weeks or so to see how it is progressing.

Most teachers can also seek recourse under state provisions; almost every state has age-discrimination laws that protect teachers. But because each administers its law differently, teachers should call the department of labor in their state and ask how to file an age-discrimination claim. The deadline for filing a state claim is generally 300 days after the date of discrimination.

Teachers can also file a lawsuit against the school district in either federal or state court. Before filing a federal suit, however, teachers must register a formal complaint with the EEOC and wait 60 days. (A private attorney well-versed in age-discrimination law can recommend whether to file in federal or state court.)

A less formal approach may also produce positive results. Eric Paltell, a Baltimore attorney who represented the Harford County Board of Education in the Stoltenberg case, recommends that teachers talk with district officials before filing a formal complaint. "Once a charge has been filed, often a district's hands are tied,'' says Paltell. "Before the charge, the district might be more flexible.''

Informal talks with a district might translate into a job offer, which, for many teachers, is the reason for filing a complaint. "If anyone at the district, at anytime during the [claim] process had offered me a job,'' says Stoltenberg, "I would have dropped all of this in a minute. I would have been happy as a clam.''

If teachers do decide to go the informal route and try to work out an agreement without filing a formal claim, they should be aware of filing deadlines. If the informal discussions drag on too long, they might miss the opportunity to file a formal complaint.

Teachers should know that years can drag by from the time they file a claim to the time it is resolved. In Stoltenberg's case, the process took three years. Was it worth the trouble? Stoltenberg thinks so. "In the end,'' he says, "I got a settlement out of it, and that's a whole lot better than the nothing I had going in.''
--Debra Ladestro

The American Association of Retired Persons offers a free booklet on the Age Discrimination in Employment Act that includes a step-by-step guide for filing a complaint. Contact: AARP Fulfillment, 611 E St., N.W., Washington, DC 20049. Request the ADEA booklet, stock number D12386.

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