As baby boomers age, more Americans say they expect to keep working longer than their parents did. That means more older job applicants—and more age-related lawsuits. Defend against this coming onslaught by taking extra care to document your disciplinary decisions to make sure age isn’t a factor.
For example, gatherinformation from as many sources as possible, not just the immediate supervisor. Are there complaints from customers or clients? Document those, too. That way, you’ll be able to readily support your evaluation as an honest, good-faith one in the event an older employee claims age was a factor.
Recent case: His age and experience made music teacher James Saia eligible for a higher salary than younger peers. When the Haddonfield Area School District did not renew his contract, he sued. Saia claimed the school district passed him by because it wanted a younger music teacher it could pay less.
But the school district pointed to hisas proof that was the real reason he was booted. The records included letters from parents who complained about Saia’s lack of preparation and discipline. Others testified that Saia didn’t even know the score the band was to play for the school musical.
The judge hearing the case said Saia had made out a prima-facie case of age discrimination: He showed he was qualified for the job because he had performed it for two years (although perhaps poorly); he was over age 40; he was not retained; and he was replaced by someone much younger. However, the court found Saia could not counter the legitimate business reason the school district put forth: his poor performance evidenced by students, parents and managers. (Saia v. Haddonfield Area School District, No. 05-2876, DC NJ, 2007)
Final note: Many age discrimination lawsuits start with an overheard comment. In this case, someone told Saia they didn’t understand why he had been hired, since “band is a young man’s game.” Remind everyone: No age comments allowed, ever.