Stray Remarks in Age Discrimination Cases

            I have often said in seminars that I have taught that the scariest kinds of employment cases I defend are age discrimination claims. Give me a good old-fashioned sexual harassment claim any day compared to a long-term employee over 40 who was fired so the company could “go in a new direction”.

            Age discrimination cases are difficult to defend because jurors, like all of us, want to believe that employers will be loyal to them when they get older. We all hate the thought of our parents or ourselves being fired simply because the employer no longer finds us useful as we inevitably age.

            This makes age discrimination cases very expensive. The median age discrimination verdict in federal courts from 1994-2000 was $269,350, higher than for any other type of federally prohibited discrimination. That only takes into account the damages awarded to the plaintiff, not the other $75,000+ that the employer spent on lawyer fees to defend the case.

            Employers know these facts instinctively, so they often come up with all kinds of ways to soften the blow when an older worker has to be fired.

            Euphemisms seem to breed like mice in age discrimination contexts. I’ve heard employers call their older employees “dinosaurs”, suggest that their idea of technology never progressed beyond a Selectric typewriter, and suggest to an employee that it is time to retire and go fishing, perhaps thinking that the older worker would suddenly act as if a light went on in his head and happily go out the office door whistling the theme from the Andy Griffith show.

            In real life these types of euphemisms only enrage the employee even more than the firing and lead to a nasty lawsuit.

In a recent federal Fifth Circuit Court of Appeals case, Machinchick v. PB Power, Inc., the plaintiff was over 60 and replaced by a 42-year-old. The supervisor responsible for the firing used every ageism cliché in the book.

            He said the company needed “employees whose mindset resides in the 21st century.” He wrote in e-mail that he intended to hire some younger engineers and designers. He claimed that the plaintiff had a “low motivation to adapt”, was “inflexible” and had a “business as usual attitude”.

            The court decided that this employer didn’t have to actually use words like “Machinchick is too old” to raise the specter of age discrimination. The case will go to trial now because the court believed the evidence as a whole demonstrated that age was one factor in the employee’s termination. Under the current law, that is all a plaintiff needs to get to a jury. Age doesn’t have to be the sole or even primary cause, just one factor in the employee’s termination.

            Can you see why these cases worry a defense lawyer like me? How many of us as employers haven’t called an employee inflexible, unwilling to adapt, or stuck in the 20th century?   So what can you do as an employer to prevent an age discrimination claim?

  • Blind yourself to your employees’ ages and look only to their performance. Many of us expect an employee to perform more slowly or less accurately at age 65 than they did at age 40, but that may not be the case. Don’t assume that an older employee can’t perform the job as well if not better than a younger person.
  • Focus on job-related criteria only when making hiring, promotion and firing decisions. Is the employee meeting production goals or sales quotas? Then we don’t care about the successful employee’s age. If the employee isn’t performing, then address the specific problems without interjecting your opinion or pop psychology about the reasons that the employee may not be successful, i.e., “your mindset doesn’t reside in the 21st century” is completely unhelpful, but “all company salespeople are required to sell 100 units by the end of the month” is specific and job-oriented.
  • Use progressive discipline and good documentation for every employment decision. If the employee is given a written warning about specific problems and a reasonable opportunity to cure those problems but does not, then an age discrimination label is unlikely to stick.
  • If you do decide to fire an employee over the age of 40, ask your employment attorney about drafting a severance agreement that provides an older employee several months’ salary and health insurance benefits in exchange for a release of liability. These types of agreements, if carefully drafted to comply with the Older Workers’ Benefit Protection Act, can protect you even if you made poor supervisory decisions. The release can erase all those awful comments you made that your older employee was inflexible, slow to adapt or downright ancient.

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