Doner Partner’s Creative Director Gets Equal Pay, Age Bias Trial

Aug. 10, 2020, 11:28 AM

  • Statistics may back woman’s pay bias, ageist firing claims
  • So could ‘modern creative muscle’ remark, CEO’s podcast

A trial is needed to determine whether Doner Partners LLC paid a female creative director less than her male counterparts because of her sex and fired her in a bogus workforce reduction because she was 59 years old, the Eastern District of Michigan ruled.

Susan Walsh has statistical evidence of both sex-based pay bias under Title VII of the 1964 Civil Rights Act and the Equal Pay Act, and of age discrimination under federal and Michigan law, the court said Aug. 7.

And a jury could see a spreadsheet created by Doner’s global creative chief-and statements its CEO made during a podcast-as further evidence of age bias in a series of RIFs the company implemented between 2015 and 2018, the court said.

Creative chief Eric Weisberg said in the spreadsheet he created for the January 2018 RIF, which cost Walsh and five other workers over age 40 their jobs, that the job cuts would result in "[n]o loss of modern creative muscle," the U.S. District Court of the Eastern District of Michigan said.

While Doner maintains the comment had nothing to do with age, a jury could find otherwise, the court said.

CEO David Demuth said during a podcast interview that Doner was trying to recruit more employees who "understand and embrace technology," and that it was more likely that recruits in their 20s would be technologically savvy, Judge Terrence G. Berg said.

Walsh’s statistical evidence supporting age bias includes testimony from her expert witness of just a 1 in 5,783 chance that so many workers age 40 or older would be included in the RIFs, the judge said. That Doner’s expert reached the opposite conclusion just creates a fact issue for a jury, he said.

The company contends the real reason for the RIFs were its declining business, but evidence that it hired younger workers after the RIFs and was seeking "more bodies" for new business, not fewer, could undercut that explanation, the court said.

An internal Doner analysis, which found the average pay of male creative directors was $174,700 compared to $156,906 for women in that role, also could help Walsh prove her pay bias claims, the court said.

Walsh’s salary was just $127,625 despite her boss’s assessment that she was a high-performing employee, the court said.

Walsh voluntarily dropped her claims against Doner International Ltd. and Detroit Royalty Inc.

Akeel & Valentine PLC represents Walsh. Honigman LLP represents Doner.

The case is Walsh v. Doner Int’l Ltd., 2020 BL 298130, E.D. Mich., No. 2:18-cv-13930, 8/7/20.

https://news.bloomberglaw.com/daily-labor-report/doner-partners-creative-director-gets-equal-pay-age-bias-trial

To contact the reporter on this story: Patrick Dorrian in Washington at [email protected]

To contact the editors responsible for this story: Rob Tricchinelli at [email protected]; Steven Patrick at [email protected]