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Older replacement won’t erase age bias claim

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in Discrimination and Harassment,Hiring,Human Resources

After a financially strapped hospital turned over its collection and registration duties to an outside vendor, four female workers over age 40 lost their jobs within six months.

They filed suit for age discrimination under California law, which has language similar to Title VII, and a jury ruled in their favor. But the judge overturned the award to Jeannie McKenzie. After all, the judge said, her duties were assigned to a supervisor who was actually older than the 40-year-old McKenzie.

But on appeal, a California appellate court reinstated the jury verdict. It said hiring an older replacement doesn't necessarily mean the employer wasn't guilty ?of age discrimination. (McKenzie v. Canfield & Associates Inc., No. A082259, Cal. Ct. App., 2000)

If this were allowed, the court said, an employer could pick one older replacement specifically to protect itself from a lawsuit.

Advice: Don't assume that replacing a worker with someone from the same protected class will insulate you from liability. Such actions may suggest your lack of bias, but a court's analysis won't stop there. Courts can, and will, look at the big picture.

This isn't limited to age bias. A Pennsylvania company last year tried to defend itself in a sex discrimination suit by saying it hired a female replacement. In ruling for the worker, the court said a replacement's characteristics have no bearing on whether discrimination occurred.

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