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Before firing, consider entire work history

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in Discrimination and Harassment,Human Resources

Here’s a way to avoid unnecessary age-related litigation: Before authorizing the termination of a long-term (and thus older) em­­ployee, look at her entire disciplinary history.

If problems are recent or have occurred under a particular supervisor, dig deeper. You don’t want to fire an employee without good grounds. Sudden deterioration in performance may be real—or a sign of age discrimination. Be especially cautious if the employee’s replacement is more than five years younger or the employee has complained about age-related comments.

Recent case: Judy had worked for more than 26 years for the same employer as a licensed practical nurse. She was 60 years old and had few disciplinary marks on her record.

That all changed under a new super­­visor. Over a four-month period, Judy racked up four disciplinary charges and was then terminated for poor performance. The discipline included one oral warning for “poor performance,” a written warning for failing to weigh a patient, a suspension for failing to measure a patient’s wound and finally for failing to ­complete an admission sheet.

Judy sued, alleging that age bias was the real reason she was fired.

She pointed out that her eventual replacement was about six years younger. Plus, she claimed the supervisor had made comments about Judy’s pace when compared to younger nurses. She also argued that the sudden scrutiny after 26 years was suspect.

The court said the case should go to a jury. It said Judy had enough evidence to cast doubt on the employer’s proffered reason for discharge—poor performance—given her long history with the company, her younger replacement and the comments the supervisor made earlier. (Dervas v. Taylor Health and Rehabilitation Center, No. 3:11-CV-1927, MD PA, 2013)

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