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Never mention workers’ ages when discussing reduction in force

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in Discrimination and Harassment,Firing,Human Resources

What not to do when closing down offices in which workers are older than the company average: Mention that eventually you may be able to hire younger replacements at lower cost. That’s just asking for a lawsuit.

Recent case: A group of older air marshals sued the Department of Homeland Security after the department shut down several regional offices.

Before the closure, DHS managers prepared an internal report highlighting the need to become more efficient and save money in light of likely budget cuts. The report identified offices to close because they were too far away from airports that needed significant numbers of air marshals because of evolving terrorism threats.

It turned out that air marshals in the offices slated for closure were statistically significantly older than those in other offices.

But the court said the difference—about three years older—wasn’t quite big enough to win the case unless there was more evidence of age discrimination. The court said the air marshals had to show that DHS took age into account when it made the decision to close the offices.

The air marshals introduced evidence of a meeting in which the closings were announced. There, a manager mentioned that DHS would lose “a lot of senior guys over this,” but it “would hire more guys and they’d be younger and he’d pay them less.”

That was enough evidence that DHS took age into account. The court ordered a trial. (KH v. DHS, ND CA, 2017)

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