Do you have supervisors who are constantly nagging subordinates about their health, weight, condition and inability to keep up with younger employees? That’s a huge age discrimination red flag that demands immediate action.
Some may see it as harmless joking or an effort to get another employee to shape up and improve his health. It’s not.
Tell bosses that any health and wellness advice should come from HR or contracted health professionals arranged by the company’s health insurer.
Recent case: Joseph was over 50 years of age when he was hired by VisionQuest, a for-profit corporation engaged nationwide in providing services to troubled youth on a contract basis. Although he was often criticized for the way he spoke with some co-workers and subordinates, he got good reviews on most of his work and responded to counseling.
However, beginning early in his career with the company, his supervisor began a back-and-forth with Joseph about his weight and condition. The supervisor was a tough, Marine type in apparent excellent health and very fit. Joseph was, in the supervisor’s estimation, soft and overweight, needing XXL shirts and exercise. He never hesitated to give Joseph frequent, pointed fitness and health advice.
For example, the supervisor told Joseph if he took Geritol and a handful of vitamins, maybe he could “do his job.” Photographs of obese men were tacked to Joseph’s office door, with captions like “old man Joseph’s abs.”
Emails referenced Joseph’s behind and suggested if it were smaller, maybe he wouldn’t be “sick so often.” Another said Joseph was “too old to cut it” on a hike and another called him “Joefoodapottamus.”
Eventually, Joseph was fired, allegedly for poor communications skills and judgment.
He sued, alleging the real reason was age bias. He said he had been forced to work in an ageist and hostile work environment.
The court looked at the emails and Joseph’s work history with the company. It also carefully reviewed incidents that led up to Joseph’s firing.
Most involved situations in which Joseph faced a choice between violating one rule or another because of staff shortages. For example, Joseph had to choose between sending an uncertified counselor to meet with a resident’s family and leaving the rest of the residents under his care without adequate supervision.
The court said a jury should decide whether Joseph was fired foror because of age bias. The judge said the supervisor could explain to the jury why he took each action when he did. Then the jury would be free to determine whether the disciplinary actions were legitimate or an excuse to terminate Joseph because of his age.
No doubt the relentless comments on age and physical condition will play into the argument. (Vance v. VisionQuest National, No. 1:09-CV-284, WD PA, 2013)
Final note: Make sure everyone—especially supervisors—understands that it’s not their role to comment on an employee’s physical condition or suggest remedies. Employees may have underlying medical conditions that contribute to their health. Plus, it seldom results in improved health.
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