Simply comparing the average age of workers before and after a RIF can make it look like age bias played a part in deciding who kept or lost their jobs. Laid-off employees’ attorneys routinely do that math.
But employers can beat such statistical arguments by showing that their decision-making processes weren’t based on age, but on other legitimate business reasons.
Recent case: William and John were well-respected news reporters for KPIX-TV in San Francisco. Both worked under written contracts.
When the economy tanked, the station owners required KPIX to immediately cut its budget by 10%. It left it up to stationto decide how to do that—the same management team that had negotiated William’s and John’s most recent contracts.
Both men were terminated—William was 66 at the time and John was 47—along with several other male reporters all over the age of 40. They sued, alleging age discrimination.
Their lawyer hired a legal statistician who reported that the laid-off reporters, as a group, were older than those who remained, and that “the disparity between the two groups is statistically significant.”
KPIX succeeded in getting the case dismissed, persuading the lower court that age statistics alone weren’t enough to support the reporters’ lawsuit. But the 9th Circuit Court of Appeals overturned the dismissal and said the station had to explain in court why the seemingly damning statistics didn’t prove age discrimination.
The company succeeded. It showed the court that it cut reporters in order of contract expiration. Those whose contracts were closest to the end were cut first. Plus, the managers who had signed William’s and John’s latest contracts had also chosen them for termination. That made age discrimination unlikely. The case was dismissed. (Schechnre, et al., v. KPIX-TV, et al., No. 11-15294, 9th Cir., 2012)