OK to fire despite isolated ‘old man’ comment

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in Discrimination and Harassment,Human Resources

People routinely say dumb things at work. For example, some employees joke around by calling other workers “old man” or making other insensitive ageist comments.

You should certainly discourage such talk and any other comments that diminish employees, customers or others based on their protected characteristics. However, rest assured that a few isolated incidents won’t mean a lost lawsuit if you also make sure that you terminate employees only for legitimate business reasons.

Recent case: Vitaliy worked for Bemis as an engineering and maintenance manager in one of its packaging plants. He was fired for alleged poor performance following an accident that injured a subordinate.

He sued, alleging he had really been fired because of age discrimination. He pointed to several instances when a supervisor and co-workers referred to him as “old man.”

His age discrimination lawsuit was dismissed after the employer argued that Vitaliy had been responsible for plant maintenance and should have been present during a particular maintenance process so that the ­subordinate would not have been injured.

It added that the accident was the last straw after declining performance that went back months.

It also pointed out that it had given Vitaliy a chance to explain what happened and then fired him three days after hearing his side of the story.

The court dismissed the case. It reasoned that the stray age comments weren’t related to the legitimate discharge. (Mikinberg v. Bemis Company, No. 13-573, 2nd Cir., 2014)

Final note: Smart employers have a set procedure in place for discipline and termination decisions. They follow that process and document each step, from first warning to final decision. And they always allow the employee a chance to explain himself unless the circumstances make that impossible.

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