Age Discrimination and Mixed Management Motives equals ADEA Lawsuit

by on December 15, 2008 · 0 Comment POSTED IN: HR Info Center

But it was just a ‘stray remark’

Dan Ferber looked the HR director in the eye. “Why are you really firing me?” he demanded.

Jon Glick waved a handful of papers at Dan. “What kind of fool do you think I am?” said Jon. “We both know you’re the oldest person in your group, and you’re three months from vesting in your pension. You think we’d fire you without a good reason?”

Then Jon went over the documentation, one report at a time. “Here are seven unexplained latenesses,” he said. “Here’s a copy of the warning you got about them, saying your job was in jeopardy.”

Over the next few minutes, Jon discussed all of Dan’s infractions – the unexplained latenesses, the irregular expense reports and the unusual cell phone charges.

‘You won’t be happy here’

When Jon finished, Dan said, “I think you wanted to get rid of me because of my age. You remember what my new supervisor told me a few months ago, don’t you? He said the company was looking for younger, single people willing to put in a whole lot of hours. He even told me that I wouldn’t be happy here in the future.”

Jon countered, “That was a stray remark. Think about it: We kept you on. We didn’t fire you for being too old. But you broke the rules, time after time. And we have the paperwork to prove it.”

From Dan’s perspective, the warnings about his latenesses and the scrutiny into how he did his expense reports hadn’t begun until after his new boss suggested that the company wanted to weed out older workers and replace them with younger ones.

After Dan was fired, he filed an age discrimination lawsuit claiming that he was fired because of his age, and that the “documentation” had been manufactured to provide his company with the legal justification it needed to dismiss him.

Did Dan win his age discrimination suit?

The decision

Yes. Dan won his age discrimination lawsuit. True, the employer had considerable documentation showing that Dan had been late numerous times, failed to offer appropriate excuses, failed to heed warnings, misused his company-owned cell phone and fudged expense reports. But to the jury it appeared as though the company had practically gone on a crusade to find reasons for terminating him.

Jurors felt that if the company hadn’t wanted to get rid of Dan because of his age, they probably wouldn’t have held him accountable for his latenesses, and they probably wouldn’t have gone over his expense reports so thoroughly.

After all, they hadn’t scrutinized him intensely before the so-called “stray remark” about the company wanting younger, single people. It looked as though first they decided to fire Dan, then went after him to make a case.

Age a ‘substantial’ factor

The court ruled that Dan’s age was more likely than not a substantial factor in the decision to fire him.

This case teaches an important lesson to managers with employees in protected classes: It’s possible that all the documentation in the world won’t make up for a stray remark.

Under the Age Discrimination in Employment Act (ADEA), if you have mixed motives for firing employees, you could lose in court – even if you can show they ignored warnings or violated the terms of their employment.

Cite: Fakete v. Aetna/U.S. Healthcare, U.S. Court of Appeals, 3rd Circuit, No. 01-2494, 10/24/02. Fictionalized for dramatic effect.

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