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Layoff choices: Focus on performance, not just salary level

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in Discrimination and Harassment,Human Resources

Nothing triggers age discrimination lawsuits like a layoff. After all, saving money is a primary consideration in most decisions to downsize. And because long-term employees are often paid more than newer employees, organizations that focus on money often end up with layoff lists heavy with post-40-year-olds. That's a recipe for an Age Discrimination in Employment Act (ADEA) lawsuit.

To avoid such liability, don't concentrate strictly on dollars and cents when making up the termination list. Instead, develop performance and skills criteria needed by the organization and apply those to everyone in the targeted category or department. Make sure the decision-maker has all the information before the cuts are made.

Recent case: David Downing, age 55, worked for Consol Energy for more than 30 years before the company terminated him during a reorganization. Downing immediately thought he'd been chosen because Consol wanted a younger work force, so he sued for age bias.

The company layoff was designed to reduce overhead by $10 million. The manager chose Downing for termination because he felt Downing's job responsibilities no longer were needed.

But the manager made a serious mistake: He never actually stopped to examine each employee's job responsibilities. Because he didn't take that basic step, the court ruled that Downing's age-bias case can go to trial. The company will have to explain how its manager concluded Downing's job responsibilities were unneeded when he didn't even know what those responsibilities were. (Downing v. Consol Energy, No. 05-01, WD PA, 2006)  

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