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When disciplining older worker, be sure to document all examples of poor performance

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in Discrimination and Harassment,Human Resources

Employees who sue for age discrimination under the Age Discrimination in Employment Act (ADEA) must prove that, if not for illegal age discrimination, their employer wouldn’t have taken an adverse employment action.

That is, a terminated employee must show that but for the former employer’s desire to discriminate against older workers, he wouldn’t have been fired. If there were other, valid reasons, the employee won’t win.

That’s why when age may be an issue, em­­ployers are better off having several good reasons for terminating the employee. That makes it much harder for the employee to pin down age as the real and only reason for termination. He may be able to knock out one reason, but another may save the day.

Recent case: David was age 41 when he was fired from his job as a hospital pharmacy technician. He helped pharmacists in the control, distribution, preparation and charging of drugs.

Other duties included stocking crash carts with appropriate drugs such as anesthetics so they were always ready to be used in medical emergencies.

David found himself under the microscope when a new supervisor discovered that one of the crash carts lacked two essential drugs. She issued David an oral warning. She also said David was “slow to complete his daily tasks as compared to other technicians and new hires.”

A few months later, David got his first written warning, this time for allegedly not stocking a dispenser with antibiotics needed for the crash carts. Ten days later, David got a second written warning, this time for allegedly losing several medications that were essential for emergency anesthesia.

Management then concluded that it was time to terminate David for his apparently careless approach to tracking and stocking drugs.

David sued, alleging he had really been fired because he was 41 years old. He pointed out that all other new hires were considerably younger and that the comment on his slow work was really proof he was being punished for being older.

In court, David claimed he might not have been responsible for the second cart incident because he hadn’t worked that particular day. Hospital representatives agreed that might have been the case. But they also argued that it wouldn’t matter. It still had two good reasons to fire David that had nothing to do with his age.

The court agreed with the hospital. It said that because David only chipped away at the underlying reasons for the first written warning, he hadn’t proved age discrimination.

Because age is the “but for” factor, and because it was clear there were two other good reasons for termination, it follows that David could not prove age discrimination. The case was dismissed. (Grimsley v. Richardson Hospital Authority, No. 3:09-CV-2011, ND TX, 2012)

Final note: David also thought his supervisor’s comment that he worked slower than new hires was direct evidence of age discrimination just because those new hires were younger. The court rejected that argument, too.

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