Be prepared to be creative when business necessity forces changes that will eliminate a position held by an older employee. When that’s the case, consider offering the older employee alternative positions.
Then track all discussions you have with the employee. If she declines to take comparable jobs, document it. That refusal will make it next to impossible for her to win an Age Discrimination in Employment Act lawsuit.
After all, a reasonable employer wouldn’t offer other work opportunities to someone it believed was too old or slow to do the job.
Recent case: Marilyn Malarkey was a 67-year-old registered nurse who worked for a temporary placement agency.
For many years, she was assigned on an as-needed basis to the emergency room at the Reading Hospital and Medical Center, with the flexibility to choose the hours and days she worked.
Malarkey was well-respected and earned good reviews from supervisors, doctors, other nurses and patients.
Temp nurses earned significantly more per hour than staff nurses who performed the same tasks. Malarkey earned $89 per hour, while the hospital paid staff nurses less than $34 per hour.
After a decade of using temps to augment its staff, the medical center began to worry that staff nurses would quit and come back as temps. To prevent that, the hospital decided to cut back on temp nurses. It told Malarkey and another nurse that they would no longer be allowed to work in the ER.
Malarkey was then offered a full-time staff position in the ER. She turned it down because she didn’t want to work full time—and presumably not for less money than she was making for working far fewer days.
The temp agency then offered her other assignments at the Reading Hospital and elsewhere. A manager made careful note of each discussion with Malarkey and recorded her rejection of each assignment offer.
Malarkey sued, alleging she had been terminated because of her advancing age.
But the court tossed out her case after reviewing the temp agency records and testimony from the medical center. It concluded that Malarkey’s age couldn’t have been a factor because age discrimination usually involves an employer’s belief that an older employee can’t do the job because she is too old. The court reasoned that an employer bent on getting rid of an older worker because of age bias wouldn’t go to great lengths to offer full-time positions and other work opportunities.
The court pointed out that it had a hard time buying the idea that Malarkey could turn down a full-time job offered by an employer she alleged was firing her because of her age and still have a viable age discrimination claim. (Malarkey v. The Reading Hospital and Medical Center, No. 09-3278, ED PA, 2010)
Advice: When you offer alternatives, make sure you’re offering a comparable position, and not one that could be viewed as less prestigious or less challenging. You don’t want the employee to argue the job she was offered reflected her employer’s opinion of what older employees can and cannot do.
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