March 11, 2020

Old Dog, Old Tricks

Even if well-intentioned or in jest, employees’ use of nicknames like “grandpa” or “dinosaur” may defeat your ability to get a charge of age discrimination dismissed.  Not to mention, supervisors asking an employee when he’s going to retire can have the same effect. That’s what happened when a 63 year old, top salesman filed a charge of age discrimination.

In ten years, the employee had received two (maybe three) notices of corrective action and none in at least two years prior to his discharge. One day, he got into a heated argument with a coworker. Witnesses concurred that the coworker (female) was the aggressor and even shoved the employee. After the altercation, she quit. The employee was told he was suspended for one week. When he failed to report to work the following week, the company told him they decided to fire him because: (1) he did not return to work; (2) he acted unprofessionally during his argument with the coworker; and (3) he had prior corrective action.

First, the court analyzed the facts and found that the former employee established his prima facie case of discrimination and the employer then provided three, legitimate, non-discriminatory reasons for the discharge. So, the next question for the court was whether the employer’s reasons for discharge were a pretext for age discrimination. The answer issued by the 6th U.S. Circuit Court of Appeals in this case was, “Yes.”

Why? Among other reasons, the court pointed out that: (1) supervisors participated in the ageist comments and name-calling; and (2) one supervisor to whom the employee complained did nothing. “This medley of ageist slurs and putdowns…arguably constitute direct evidence, [and] are compelling  circumstantial evidence that [the employer’s] legitimate reasons for terminating [the employee] are pretextual.”

Tip #1: Sometimes I hear managers’ frustration when HR reviews their employment decisions, including prior to discharging an employee.  This is an example of why. It is not to cast doubt upon your decision. It is to reinforce it. It is to help ensure consistency and equity across the organization. And, yes, it is to ensure that the facts as presented, really are the facts with no underlying or unaddressed issues of which you may be unaware.  Then, if things go awry – at least you’re not in it alone; HR will have endorsed your decision.

Tip #2: Keep yourselves safe, managers. Can you be sued as an individual under the Age Discrimination in Employment Act (ADEA)?  Yes! So, re-read Tip #1.

Want more news and information on age discrimination in the workplace? Check out FiveL Company’s September 2019 webcast, “The Changing Face of Age Discrimination: Today and Tomorrow,” still providing 1.25 credits pre-approved by HRCI and SHRM.  $25 pp. Click here for the program description or to register.