American Ballet Theatre Settles Lawsuit

Alleged age discrimination over firing of 74-year-old musician

Volume CVIII, No. 4April, 2008

Harvey S. Mars, Esq.

Last October, the Equal Employment Opportunity Commission sued the American Ballet Theatre in U.S. District Court.

The suit was based upon an age discrimination claim filed by a Local 802 member. He was a 74-year-old non-tenured trumpet player who had been abruptly terminated by the ABT in 2005 and then replaced by a younger musician.

At the time, Allegro chose not to report on the suit until both sides had argued the case. We didn’t want to name the member and we didn’t want to sensationalize the case. In this column, I’d like to write about how the situation was settled.

Before we go further with this particular case, I’d like to back up and give some information about how EEOC cases work.


The EEOC is a federal agency whose mission is to prevent employment discrimination based on factors such as age, sex or race. When workers feel they have been discriminated against, they file a complaint with the agency.

But the vast majority of discrimination complaints are found to be without merit as soon as the EEOC completes its investigation. These claims are deemed to be lacking probable cause that a violation of the anti-discrimination laws has occurred. The claimant receives a “no cause” determination.

Claimants may pursue the claim further. However, they only have 90 days to initiate a lawsuit on their own behalf in federal court — and most do so at considerable personal expense. Failure to commence suit within that time frame will result in the forfeiture of the claim.

On the other hand, when the EEOC finds that there actually is evidence supporting the existence of a statutory violation, the claimant receives a “probable cause” determination. If the claim is not voluntarily resolved, the claimant is still required to initiate suit within 90 days. The probable cause determination, however, gives the litigant a considerable tactical advantage.

Of the very small percentage of claims found having probable cause by the EEOC, an even smaller percentage are actually pursued by the EEOC through suit.

If the EEOC decides to initiate suit, the claimant enjoys the dual benefits of free legal representation and the formidable resources of the federal government.

Most often the EEOC will pursue claims it believes have significant public interest since part of the EEOC’s Congressional mandate is to educate and increase public awareness of the application of civil rights laws.

For this reason, when the EEOC initiates litigation it seeks public exposure of the suit and details the nature of the suit in press releases issued to the media.


Now let’s return to the case of the 74-year-old Local 802 member who was fired by the American Ballet Theatre.

It’s remarkable that the EEOC itself chose to pursue this claim. Remember, that’s very rare!

However, the case never made it to court.

Upon the consent of all parties — including the claimant — the dispute was submitted by the court to early mediation.

A mediator serves as a facilitator and catalyst for voluntarily resolution of a dispute. Whereas an arbitrator has authority to issue a final and binding determination, a mediator has no authority to render any binding determinations.

However, mediators serve as a go-between for parties who are often deadlocked in diametrically opposed views of the merits of a dispute. Mediators provide a fresh perspective based upon information they receive from both parties.

The benefits of early mediation are obvious since it is best to seek quick resolution of a legal action before the parties invest considerable resources in the litigation.

At the claimant’s request, I assisted in representing him during the course of this mediation.

The mediator was Vivian Berger, professor emerita of law at Columbia University. She is extremely well-versed in employment law and also had substantial experience and success mediating suits initiated by the EEOC.


The mediation took place over the greater portion of one day and in fact successfully resulted in a voluntary consent decree, which most likely will be entered as a federal court order before the publication of this article.

The consent decree contains a “non-admissions clause.” The American Ballet Theatre had ardently argued that it did not violate the Age Discrimination Employment Act and is not admitting liability.

Other features of the decree, which are required in all settlement agreements promulgated by the EEOC, are:

  • The ABT is barred from discriminating against any of its employees on the basis of their age.
  • The ABT will be monitored periodically by the EEOC to make sure the company complies with the Age Discrimination Employment Act.
  • All supervisory staff must take mandatory training about federal and state discrimination statutes.

The decree also provides for a modest back pay award for the claimant, who did not seek reinstatement of his job.

Like any good settlement agreement, both parties left the mediation feeling to some extent dissatisfied with the result.

Nonetheless, I believe that this decree, with all its beneficial features, will do much to ensure that all ABT employees, including orchestra members, will work in a discrimination-free work environment.

I applaud all the parties to this mediation. Despite their differences they amicably achieved resolution of this vigorously disputed claim. I was particularly impressed with the mediator, Vivian Berger, who was instrumental in convincing the parties to enter into the decree. 

Harvey Mars is one of Local 802’s lawyers. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.