Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

The economy is still funky. Unemployment continues to rise. And, with Boomers entering their retirement years, some of those older laid-off employees are crying foul. In fact, the EEOC last year reported a shocking 29% rise in age discrimination claims. The good news: A recent U.S. Supreme Court decision made it more difficult for employees to win such cases, as the following case shows …
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Case in Point: A large telecom company hired 54-year-old Guy Martino as a business solutions consultant. He worked there for 17 months and helped close a huge deal, earning “quite the commission” that generated nearly 85% of his sales revenue during his employment.

Beyond that sale, however, Martino failed to meet his quota for seven months before the deal was closed, and for two months afterwards. The one big transaction appeared to “the sole bright spot in an otherwise unremarkable tenure,” the court said.

When the company decided to adopted a new business strategy, it laid off 34 employees. Martino seemed like a likely target because he didn’t have the skills to support the new strategy. So Martino was RIF’ed.

Martino sued the company under the Age Discrimination in Employment Act (ADEA), claiming he was fired because of his age. His evidence? He alleged his supervisor often called him an “old-timer.”

The company denied it had discriminated, asserting that it RIF’ed other employees who were younger and Martino just didn’t have the skill set they needed. Company officials also noted that they'd hired Martino when he was 54 years old.

Plus, the Supreme Court’s ruling in June (Gross v. FBL Financial Services) said that for employees to successfully bring ADEA lawsuits they must now show that age discrimination was the cause—not just one of several contributing factors—for the termination. (Martino v. MCI Commc'ns Servs. Inc. d/b/a Verizon Bus. Servs., 7th Cir., 7/28/09)

What happened next and what lessons can be learned?

The court sided with the company and tossed out Martino’s case. It said the company was able to show that this was a performance-related decision. “Choosing to terminate someone on the basis of old age is impermissible,” the court said. “But choosing to let someone go because they have an obsolete skill set … is completely kosher.”

What about the “old-timer” comment? The court said that even if one supervisor showed potential bias, the layoff decision was made by a higher-up, unbiased executive. “The decisionmaker did an independent analysis and came to his own conclusion,” the court said.

Finally, the court said that any doubt about the company winning this case “evaporates” in light of the Supreme Court’s ruling in the Gross case. ADEA plaintiffs must now prove that their employer would have take the adverse action “but for” the person’s age. But in the case, the court said, “a reasonable jury could only conclude that he would have been fired anyway; age was not a ‘but-for’ cause.”

3 Lessons Learned Without Going to Court

Deciding who to RIF employees requires HR to have a special skill set, to:

1. Rub Your Magic 8 Ball. Yes, no, maybe so. Look at every candidate individually so you can justify who got on the axe list and why. In this case, the court was persuaded by the company’s justification for terminating someone who did not have the necessary skills the business needed.

2. Use Your Dart Board. Target all supervisors and managers for training to increase their awareness of subtle discriminatory-like conduct. It does not help your case to have supervisors who make age-related comments.

3. Squeeze Your Stress Ball. Educate your leadership to avoid making any employment decisions based on age or any other protected characteristic. It’s a more proactive plan than squishing foam rubber.