OK to voice concern about age as long as you don’t base termination decision on it — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

OK to voice concern about age as long as you don’t base termination decision on it

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When determining which positions should be eliminated during a reduction in force or reorganization, sometimes supervisors and managers will look at the ages of those likely affected. All by itself, that’s not evidence of age discrimination.

It’s perfectly natural to consider the obvious age of job-holders and wonder if terminating them could trigger a lawsuit. Voicing that concern isn’t itself age discrimination.

Recent case: Sharilyn was 63 years old when her position was eliminated.

She had worked in the auditing department at a parking garage company for many years and had always earned good reviews. Supervisors and co-workers liked her and applauded her hard work.

But over time, much of what she did on a day-to-day basis became automated. Cash payments no longer had to be hand-counted. Credit card payments were automatically posted and reconciled.

The company performed an internal audit and concluded that it could readily eliminate Sharilyn’s position.

However, supervisors expressed concern about the plan after realizing that Sharilyn was among the company’s oldest employees. She lost her job anyway.

Sharilyn sued, alleging that she had been terminated because of her age. She pointed to the comments about her age as proof.

The court didn’t buy it, concluding that such “concern … should be regarded as a natural reaction to the ever-present threat of litigation attendant upon terminating an age-protected employee.” It dismissed the case. (Haggenmiller v. ABM Parking, No. 15-3107, 8th Cir., 2016)

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