To bury age discrimination, track decision-makers’ ages, too

As the population gets older, age discrimination cases are sure to become more commonplace. Some tried-and-true administrative processes can discourage those claims.

Advice: You can and should track discipline by employee age. That way, you can readily show that the employee who’s claiming discrimination wasn’t treated less favorably than younger employees. If some of the decision-makers were themselves older employees, be prepared to show it. When courts see older decision-makers, they’re less likely to believe age discrimination was the real reason for disciplinary action.

Recent case: Kevin Allen, age 44 when he was hired, lost his job at PetSmart. The company was concerned that the store Allen managed had too many animal deaths, particularly in the fish department, and it demanded that he improve.

The company had put several other store managers on similar performance improvement plans (PIP) for the same reason. When the pet losses continued, PetSmart fired Allen and some others.

He sued, alleging age discrimination. But PetSmart pointed to two things as evidence age had nothing to do with Allen’s discharge: First, it showed that one of the managers who had successfully met the PIP requirements was older than Allen. He kept his job, while several younger managers lost theirs. Second, PetSmart listed the ages of all the managers involved in Allen’s discharge. All were older than 40.

The court tossed the case, reasoning that the fact that older employees decided Allen should go seriously weakened an age-discrimination claim. (Allen v. PetSmart, No. 05-6760, ED PA, 2007)