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Discharge due to downsizing? Document your RIF plan

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in Discrimination and Harassment,Firing,Human Resources,Leaders & Managers,Management Training,Performance Reviews

In a volatile economic climate like the one that roils many industries today, the threat of downsizing has become a fact of life. And because conditions change rapidly, management may make what seem like capricious decisions on who stays and who goes. That can be a huge problem if an older employee suspects age discrimination and sues—especially if there are other smoking-gun signs of discrimination, such as a supervisor’s apparent antipathy for older workers.

Block the lawsuit early on with rock-solid documentation showing:

  • The company’s financial situation
  • The process used to determine which employees would lose their jobs
  • Concrete justifications for each termination. Those justifications should include objective reasons such as poor performance, failing to meet goals and other quantitative measures.

Recent case: Richard Blair was 57 years old when he lost his sales job with Henry Filters during what was purportedly a reduction in force.

But unfortunately for the company, Blair had a supervisor known for his outspoken comments. He had called Blair “the old man on the sales force.” The supervisor also had speculated that the company needed “to set up a younger sales force” and that Blair should be moved from the Ford to the GM account because Ford buyers were younger and “engaged in youthful activities like mountain biking.” Blair sued.

The company said its real reason for firing him was the RIF. But it was unable to show the court any underlying evidence of a legitimate RIF. Instead, it appeared that Blair’s supervisor, who had long been known as “The Terminator,” was firing whomever he pleased. The court ordered the case to trial. (Blair v. Henry Filters, Inc., No. 05-2437, 6th Cir., 2007)

Final tip: No manager or supervisor should comment on age, even in jest. If the company had cracked down on the supervisor when it learned of his reputation and comments, it probably could have prevented the lawsuit. Without the comments, Blair wouldn’t have had an age discrimination case because there would have been no evidence that the real reason was discrimination and the RIF was a pretext.

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