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Older worker’s performance falling? Document the decline before discharge

by on
in Discrimination and Harassment,Human Resources

It almost never looks good in court when an employee who has been with the company for decades suddenly loses his job. For many potential jurors, that smacks of age discrimination even before they’ve heard any testimony. That’s one reason to try to get age cases dismissed long before a jury gets a chance to impose its judgment.

One way to get the case dismissed is to explain why a formerly good performer no longer meets the company’s performance expectations. The best approach is to set reasonable and easily understood goals for the employee—and give him a chance to meet those goals. It helps if those goals are in line with ones he met in earlier years, but is no longer meeting.

Recent case: Charles Riley worked for Lance Snacks for 30 years before he was discharged for not meeting sales quotas. In prior years, he almost always bested his sales from the year before, meeting the goals he and his supervisor set for the year. But then his sales fell.

Riley was placed on a performance development program that said he had 60 days to get his sales up to the goal he had set for the year. At the time, his sales were down 19.9%. He had projected they would be up 10.9% for the year. He didn’t meet the goal, and Lance fired him.

Riley sued, alleging he was terminated because he was 59 years old. But the court quickly dismissed the case, even though Riley tried to argue he had always had positive reviews and the sales goals were just an excuse to get rid of him. The court compared Riley’s prior-year sales and also saw the decline. (Riley v. Lance, No. 06-3697, 8th Cir., 2008)

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