If you are planning a layoff within a small group of employees, the fact that one of the employees about to lose her job is the oldest of the group won’t be the basis for a successful age discrimination claim.
It takes more evidence that age was a motivating factor for the employee to win an age discrimination case. That’s because she can’t use statistics to prove the disparate impact on older workers in such a small group. Such numbers are only reliable if the sample group is large enough to meet statistical standards. A large enough group is typically made up of 15 or more employees.
Recent case: Harriet Schoonmaker was one of five employees working on the third shift at a bindery. She was the oldest worker on that shift.
When the company decided to downsize its workforce, it concluded that the third shift was the least productive. It cut two employees from that shift, one of whom was Schoonmaker.
She sued, alleging age discrimination.
The bindery argued that just because it kept younger employees didn’t prove it laid off Schoonmaker because of her age.
The court agreed and dismissed the case. It noted that with such a small group, the fact that Schoonmaker was the oldest employee didn’t offer statistical proof that her age was the reason. She couldn’t offer any other direct evidence of discrimination. (Schoonmaker v. Spartan Graphics, No. 09-1732, 6th Cir., 2010)
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