Even if an employer has a good history of avoiding age discrimination in hiring, it can be sued for age discrimination if a reduction in force disproportionately affects older workers. Generally good hiring practices don’t prove that no discrimination occurred when drawing up the RIF list.
That’s why courts frequently look at individual managers’ statistics. If the actions of a particular manager caused the average age of his or her employees to fall, RIF victims may well be able to bring age discrimination cases to trial —even if, overall, the company hired plenty of older employees before the RIF.
Advice: Be proactive—track each manager’s hiring and termination practices.
Recent case: Better agricultural practices allowed Eagle Produce to streamline its operations, so it laid off several workers who happened to be older. In fact, the employees had been hired at relatively advanced ages—one was 65. They sued, alleging age discrimination under the federal Age Discrimination in Employment Act (ADEA).
When employees sue under the ADEA after a RIF termination, they don’t have to show that younger workers replaced them; by definition, a RIF means there were no replacements. Employers typically defend their practices by showing either that the RIF didn’t cause the work force to become significantly younger or that some of the employees laid off were recently hired at an older age. The inference is that a company that often hires older workers won’t fire them because of their ages.
In Eagle Produce’s case, the before-and-after change in the companywide average age was not statistically significant. The court, however, said that was not the end of the matter—nor was it enough that the company routinely hired older workers.
Instead, the court took a close look at the hiring practices of individual managers. In this case, the manager in question was relatively new and turned out to have been steadily dropping the average age of the applicants he hired. That was enough for the court to send the case to a jury trial. (Diaz, et al., v. Eagle Produce, No. 06-15878, 9th Cir., 2008)
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