Too Old for Anthropologie? Court to Decide

Oct. 23, 2018, 6:16 PM

A retail worker at an Anthropologie store in New York was relegated to the fitting room after complaining that a supervisor said she was “too old” for a promotion, her lawyer told a federal appeals court.

Brian Heller told the U.S. Court of Appeals for the Second Circuit Oct. 23 that Urban Outfitters Inc.—the hipster lifestyle company that owns Anthropologie, a women’s clothing, accessories, and home goods chain—violated federal law by retaliating against 54-year-old Blair Davis-Garett for complaining about her boss on a company hotline.

“Look around you. Everybody in the company is young,” store manager Kelly Bentley allegedly told Davis-Garett to explain why she wasn’t going to get a job as an apparel supervisor. Bentley was 34 years old at the time.

“Blair Davis-Garett isn’t the only one who’s gone through this,” Heller told a three-judge panel in Manhattan. “This is the next #MeToo movement.”

The case comes as the federal government has struggled to root out age discrimination on the job. Amazon.com, T-Mobile US Inc., and Cox Media Group are facing a proposed class action for allegedly discriminating against older job seekers through targeted ads on Facebook.

Heller said store supervisors also scheduled Davis-Garett to work back-to-back closing and opening shifts for 10 days straight at the White Plains location. She was later transferred to another store in Connecticut and fired after an incident in which she called local police about a suspicious person in the store.

Blair Robinson, a lawyer for Urban Outfitters, told the court Davis-Garett’s schedule and work assignments had nothing to do with the complaint.

“That’s not age discrimination, that’s part of the job,” Robinson said.

Davis-Garett wants the court to overturn a lower court decision finding that she couldn’t prove the company retaliated against her. Her lawyers say a reasonable jury could find that the actions rise to the level of unlawful retaliation and were meant to punish Davis-Garett.

Older Workers Doing ‘the Dirty Work’

The question before the appeals court is whether the federal district judge that ruled for Urban Outfitters used the correct legal standard for gauging possible retaliation. The judge said the fitting room assignment and “clopening” schedule wasn’t sufficiently “adverse” to qualify as retaliation under the Age Discrimination in Employment Act.

But at least two of the Second Circuit judges—Chief Judge Robert Katzmann and Denny Chin—seemed to indicate that Davis-Garett can also continue to pursue a separate age discrimination claim. Although the company employed other workers in Davis-Garett’s age range, the judges noted all the managers in the stores where she worked were in their 20s and 30s.

“The argument would be that you hire them to do the dirty work,” Chin told Robinson.

The case is Davis-Garett v. Urban Outfitters, Inc., 2d Cir., No. 17-03371, case heard 10/23/18.

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Phil Kushin at pkushin@bloomberglaw.com

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