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Older employee slowing down: Does termination = discrimination?

by on
in HR Soapbox

When some older workers hear the word “slow,” they may immediately assume that’s a code word for “old.” But sometimes, slow just means slow.

As a new court ruling shows, if you have employees who can’t meet the job’s required—and preferably written—performance levels, you’re not required to keep them on staff, regardless of their ages. If you do plan to discipline or terminate an older worker due to the person's reduced or poor performance, just make sure you follow the golden rule of employment law ... Do It To One, Do It To All. Equality and consistency will save you in court.

Also, remember that aging, by itself, is not considered a disability under the ADA (see box below). However, older retire employees may have medical conditions related to age that do rise to the level of a disability and, thus, must be accommodated by the employer.

Consider this recent case: Cheryl, a cellular service sales representative, shared a workspace with a number of younger sales reps. Almost from day one, supervisors counseled Cheryl on her attendance and tardiness, noting that she was frequently late for her shift.

Although Cheryl did receive one positive year-end review, her performance slowly deteriorated. Her supervisors constantly complained that she took far too long to complete transactions and often took much longer than her colleagues to close out at the end of the day.

Finally, when nothing improved, Cheryl was terminated.

She sued, alleging age discrimination and claiming that the “too slow” argument was just code for saying she was too old to work in cellular sales. Plus, she said older customers sought her out because of her maturity and those customers took longer to choose services.

The court didn’t buy her arguments, and sided with the company, noting it had given Cheryl plenty of opportunities to improve her speed and correct her tardiness. (Austin v. Alltel Communications, MD NC, 2013)

Final note: Had supervisors made other comments to accompany their complaint of slow performance, the case might have turned out differently. But no one called Cheryl “old” or made other negative comments. The supervisors focused on her actual performance, measuring it against all co-workers, both young and old. They used objective measures, such as time spent to finish setting up accounts for customers.

{ 1 comment… read it below or add one }

Jerry Huang January 16, 2014 at 5:28 pm

Hi Pat,
The following is my comments on your article.

In accordance with Human Rights Act 1993, one of the prohibited grounds of discrimination is age. Any employer is not allowed to terminate any employee legally due to his / her age. In the blog, the employer did not make any negative comments in respect of Cheryl’s age. Instead, they used other measure relevant to the age, such as service speed to assess Cheryl’s performance. Thus, when the employer finally terminated Cheryl’s work due to her low speed, the Court could not buy Cheryl’s argument. However, from my critical point of view, the employer should have considered more ethically, although their action was legal and did not breach any Act.
Analyse the situation using ethical theories:
With Utilitarianism, the main points include producing the greatest amount of happiness and least harm with considering equally the interests of all affected.
The consequence of terminating Cheryl’s job did harm her interest because Cheryl sued the employer after being dismissed. Probably, the business would have performance measure in place which Cheryl has appeared not to achieve. Cheryl’s tardiness and low speed would have been creating a greater workload for other staff members. On the surface, dismissal of Cheryl would produce better consequences. However, the employer should identify the core reasons behind this. It might be irrational procedure or lack of training. If so, terminating Cheryl was not fair as such. On the other hand, some customers prefer to receive slower; more relax services as if chatting with their old friend at home. Cheryl might be suitable for the position to deal with those customers who need special services instead of speed focus. Thus, recognizing the good aspects of Cheryl’s age, such as maturity, reliability and taking advantage of these positive points will be achieving win – win situation ethically. Terminating her job might not create greater happiness for the greater number.
With Kantian moral theory, the main issue is to choose options that demonstrate respect for rational humanity according to the ‘universal law’ and ‘treat people as ends’ criteria.
Can the principle ‘terminating older employee slowing down’ be willed to be a universal law? No, because this option would contradict the principle of Human Rights Act. Although Kantian moral theory would support some universalised codes of conduct, any code the business would have must show respect for people’s intrinsic value as ends in themselves in term of ethics.
Given that the case in blog, although likely due to her age, the slowing down performance has not reached the code of conduct, Cheryl’s intrinsic value, such as maturity, life experience should be respected. Thus, before adopting the option of terminating, the employer should consider more ethically. For example, they might discuss with Cheryl about other alternatives to realize her intrinsic value. One of the ethical alternatives could be changing Cheryl employment contract from current hourly base to commission base. Considering Cheryl’s situation, ability, as well as her performance, such arrangement without any discriminating is not only to consider equally the interests of all affected under Utilitarianism, but also to respect for Cheryl’s rational humanity under Kantian moral theory. Generally speaking, hourly base is more favourable than commission base in term of income stability. Cheryl has her own free and rational consent to the new employment contract to benefit all affected. Or, she has also her own free choice to refuse this contract and leave the employer. Obviously, this alternative would not give rise to any ethical issue because the employer respects Cheryl as a rationally autonomous individual who makes her own choice.
With virtue ethics, besides fairness, trustworthiness, one of the most important characteristics of employer is the responsibility for employee in terms of individual and social aspect. There are two thinks of the business roles. One is ‘profit maximisation’ view which concludes that the sole role of the business is to maximise profit while remaining within the law, the other is ‘stakeholder obligation’ view which concludes that the social responsibility of business is to manage a firm in the interest of all its stakeholders (Open Polytechnic, 2013, M3, p7)
Obviously, the employer in the blog adopted the action in accordance with ‘profit maximisation’ view – terminating Cheryl legally for maximising business profit regardless of her interest. Actually, simply obeying the law is not adequate as a sole duty for business in virtue ethics respect. That means, business has more social responsibility for stakeholders in society as a whole. Ethically, the other roles for the business that has social responsibility can be listed as follows:
• Providing employment to older people
With more and more aged people in our society, some of them, in particular those in good health would like to continue to work and to share their life experience with younger people. In the case mentioned in blog, the business should assist Cheryl in overcoming some difficulties in her employment in more ethical way to realize the business’s social responsibility instead of throwing her out into the society.
• Enhancing self – esteem of aged people and moral climate of respect for aged people in society
Some aged people always feel depressed, lonely, and unuseful when they are getting older. Employment is one of the efficient ways to enhance their self esteem, self confidence and dignity. In addition, our society needs the positive and moral climate of respect for aged people. Ethically, the business in the blog may set up a good example of achieving the social responsibility goal if the business could help Cheryl to fulfil her employment position.
Although the employer mentioned in the blog did not do anything illegally, the main point of critical opinion is that they should consider more in term of ethics. The ethical business decision making such as whether terminating older people, how to help aged people in their employment must take into account of the interest and concerns of a business stakeholders with a view of social responsibility.

References:
The Open Polytechnic of New Zealand. (2013). Module Two.71203 Business ethics. Lower Hutt, NZ: Author.
The Open Polytechnic of New Zealand. (2013). Module Three.71203 Business ethics. Lower Hutt, NZ: Author.

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