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How to guarantee a lawsuit: Terminate only older workers during reduction in force

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in Discrimination and Harassment,Firing,Human Resources,Leaders & Managers,Performance Reviews

Are you planning a reduction in force due to the poor economy? If so, double-check who is going to lose their jobs, paying particular attention to whether the burden falls predominantly on workers over age 40.

If that is the case, make absolutely certain you have legitimate business reasons to back up your decision to fire them. Objective reasons such as skill levels and performance appraisals should support your decision if employees challenge it in court.

Here’s why: Older employees have an easy time getting their day in court if a termination has a disproportionate impact on those who are protected by the Age Discrimination in Employment Act (ADEA). In order to get the case dismissed, the burden falls on the employer to prove that age was not a motivating factor.

Recent case: Three industrial workers who lost their jobs during a reduction in force sued because their former employer only terminated employees over age 40.

The company explained that it terminated the older employees only because they were at the bottom of a list that ranked employees according to essential skills. The older employees didn’t have the experience or training required to run the kinds of machines necessary to serve the company’s remaining clients.

The employees argued that their lack of skills was just a pretext but couldn’t poke any holes in the employer’s explanation. The court dismissed their case. (Rahif, et al., v. Mo-Tech, No. 08-4846, DC MN, 2009)

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