Guest post by Dave Clemens, The HR Café Blog
(The following is fictionalized for dramatic effect.)
“Yes, Alexis was good at her job — but so were the people who made buggy-whips,” said Supervisor Mark Broomall.
“I know that your company claims her termination was justified by deteriorating business conditions,” said Justin Case, attorney at law. “But the facts don’t seem to bear that out.”
“Our business has changed dramatically over the past few years,” Mark said. “I personally blame it on the Internet. Not everyone can keep up.”
“Let’s keep your opinions out of this, Mr. Broomall,” said the attorney. “I’d like to review the facts in this case — from the beginning.”
Mark shifted in the conference room chair. It was the first time he’d been deposed as part of a lawsuit filed against the company.
“Well, here’s what happened,” he began. “Alexis started working for us years ago on a product line that’s now slowly dying. Sales have been trending down for years.
There were times when she literally had nothing to do.”
“So you had her perform fill-in jobs, isn’t that right?” Case asked. “To keep busy?”
“Yes,” Mark said. “But that just didn’t seem right. After all, she’s 55 and her hourly rate was four times higher than her co-workers. We talked to her about cutting her hours or her pay rate.”
“Then you launched another product line that involved learning a new piece of computer software, is that right?” the attorney asked.
“We thought learning an important new skill would fix things,” Mark said. “We started to train Alexis on the new software. That’s when all the trouble started. She just couldn’t ‘get it’ as quickly as her co-workers. She couldn’t keep up.”
“Now let me get this straight,” Case said. “It was about this same time that you implemented a new break schedule?”
Walked off the job
Mark nodded. “Yes, we changed the break schedule, and Alexis kept messing up. She took her breaks at the wrong times.”
“And you terminated her over something that minor?” Case said, leaning forward in his chair. “Weren’t other employees doing the same?”
“Well, yes,” Mark said. “But when I gave her a warning, she got all emotional and walked off the job. We terminated her for job abandonment.”
“On the same day she left?” the lawyer sniffed. “That suggests you were looking for an excuse to get rid of an older worker to save a buck. I can hardly wait to get you on the witness stand.”
This case did end up in court, when the employee sued for age discrimination. Did she win?
Yes, Alexis won an important victory when the court ruled that a jury should decide if she was a victim of age discrimination. In this situation, companies typically pen a hefty settlement check.
In making its decision, the court looked at three factors:
- The supervisor’s performance reviews and comments about Alexis being a “good worker” didn’t support the claim that her termination was performance-based.
- Other employees may have had trouble learning the software and following the break policy, so Alexis appeared to be singled out for discipline.
- Dismissing her for job abandonment ran counter to the company’s existing three-day absence policy and could be a pretext for age discrimination. Progressive discipline would have been a better approach.
The law protecting workers over the age of 40 is the Age Discrimination in Employment Act (ADEA). And you should know that ADEA claims are on the rise, especially now that Boomers are reaching retirement age. Here are some guidelines for managers:
- Look at abilities when hiring. Don’t ask age-related questions with new hires. Focus on their skills. You might say something like: “Tell me how you’d solve this kind of problem.”
- Zero in on performance. Don’t let age play any role in job assignments or expectations. Say: “You’re staying ahead of the goals we agreed on. Keep up the good work!”
- Avoid age-based comments. Lawsuits have hinged on comments like “dinosaur” or “back in your day.”
- Keep iron-clad documentation. You need solid proof of business need for employment actions that might trigger a bias claim. Say: “We’re moving you to this other machine because we need you there and it’s easier for you to handle.”
Cite: Margelewski v. Cosco Industries, Inc., No. 06 C 6349, N.D. Ill.
Dave Clemens is a senior writer for Rapid Learning Institute and writes The HR Café Blog. His work has appeared in The Associated Press, World Press Review and in several human resources, employment law and business newsletters. You can connect with Dave via Twitter @TheHRCafe.