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Retaining younger workers but terminating older ones? Better have a good reason

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in Discrimination and Harassment,Human Resources

If you happen to fire an older worker but retain younger ones, you should expect a potential age discrimination lawsuit. If you’re prepared, you stand a dramatically better chance of winning.

Have good discharge reasons lined up and ready to go.

Recent case: Ann, who was over age 40, worked on yearly contracts for a charter school, teaching Advanced Placement Calculus.

During her first year, just one student got a good enough score on the standardized test to earn college credits. In her second year, an administrator decided to review Ann’s classroom teaching methods. He told her several times that she needed to improve her teaching and offered suggestions.

However, toward the end of the year, he recommended against offering Ann a new contract for the following year.

Ann sued, alleging age discrimination. She claimed that other math teachers who were retained were younger.

The court disagreed after observing that none of the younger teachers had the same poor results or had been advised to improve their teaching skills. The case was dismissed. (Rosenberg v. KIPP, No. 14-13-00969, Court of Appeals of Texas, 2015)

Final note: A carefully laid out case for poor performance trumps a strictly circumstantial age claim based on who was terminated and who wasn’t. That’s especially true when there isn’t other age-related evidence—that is, no ageist comments or jokes.

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