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Louis Pechman is a partner at Berke-Weiss & Pechman LLP, a Manhattan law firm which concentrates in employment law.
May 12, 2009 eighteen year olds are faced with a flat out ban on their employment regardless of whether they are the next Kobe or a disappointment. Age discrimination against individuals who are too young is a viable legal claim. In Oregon, a court found discrimination where a beauty shop refused to hire a thirty-year-old woman because she was too young to deal with clientele in their 70s and 80s. Similarly, the termination of a Michigan account executive because the clients wanted an older account executive and her voice sounded too young on the phone, presented a claim of age discrimination. And when a twenty-five year old bank vice president was fired and replaced with someone older after he revealed his age to his employer, a New Jersey court found that individual had presented a viable age discrimination claim. The 2004 case of Clarett v. National Football League, does not give the NBA any solace vis a vis the age discrimination issue. The Clarett litigation approached the National Football Leagues age requirement that a player must be out of high school for three full football seasons before entering the draft as an antitrust challenge, rather than as an age discrimination case. The Second Circuit found that the NFL, as a multiemployer bargaining unit, could act jointly in setting the terms and conditions of players employment and rules of the sport without risking antitrust liability. But the labor exception which carried the day in the Clarett antitrust case is not a shield when it comes to a union and employer agreeing on an unlawful ban to employment based on age. Indeed, in the discrimination law context, it is well settled that unions will be held jointly liable with employers under the federal discrimination statutes for discriminatory terms contained in a collective bargaining agreement. In sum, it is only a matter of time until the next promising eighteen year old challenges the NBAs age requirement on the basis of age discrimination. The case could be a slam dunk. 2