Be aware of age discrimination when completing RIFs

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

Was this adverse action justified

David Braun could not believe his ears. After 21 years of loyal service, he was being discharged in a Reduction in Force.

“This is not right,” David told his boss, Jim Johnson. “I’m 61 years old, and it looks to me like everyone getting laid off is older, like me. On the other hand, you’re keeping every young manager. That’s illegal, Jim.”

“David, it’s not like that at all,” said Jim. “We conducted exhaustive reviews of all the managers’ business units. We looked at every possible factor we’ve ever measured you by – efficiency, cost, labor issues, everything! We gave each manager an objective grade. And we decided to terminate the business unit managers with the lowest scores.”

David wasn’t sold. “You’ve got to be kidding,” he said. “Your grading methods are flawed. For example, you rated me as exceeding my marketing budget last quarter.”

‘Objective’ measures

“It’s true, you did,” said Jim.

“I did not!” David insisted. “The quarter before last I came in under budget. Remember? The money that was left over rolled into last quarter’s budget. It may look like I spent more, but if you average it out over the year, I’ve actually spent less on marketing while generating higher revenues.”

Jim sighed. “You can nitpick this to death. But the fact is, we used objective measures to grade you and the other business unit managers on plenty of metrics. If those we are laying off happen to be older than those we are keeping, it’s a coincidence, not discrimination.”

David pointed out that his past performance reviews (all outstanding) weren’t even taken into consideration. Jim argued that numbers don’t lie and he stood by his decision.

David hired a statistician as an expert witness and he filed an age discrimination lawsuit.

Did he win?

The decision

Yes. David won his age discrimination lawsuit.

In court, David’s statistician made an in-depth analysis of the employer’s “objective measures” for evaluating the unit managers.

And in reaching its decision, the court wrote, “The five categories by which the unit managers were assessed were entirely subjective.”

Also, the judge noted that in assessing David’s skills, Jim did not review David’s past evaluations, which were glowing. Nor did he consider a merit raise David received six months prior to the Reduction In Force.

According to the expert, a 60-year-old had about a 300% better chance of being terminated than a 30-year-old. When the employer argued that the 60-year-olds may not have performed as well, the statistician poked holes in their argument.

Watching out for subjectivity

This case reminds us it’s a good idea to bulletproof your methods for letting people go during a RIF. In both reduction in force and forced retirements, companies can elevate their exposure to age discrimination lawsuits

If there’s too much subjectivity in a methodology, or if the method results in the ax falling disproportionately on older workers, you could be setting yourself up for an age discrimination lawsuit

Cite: Currier v. United Technologies Corporation, No. 04-1696, 1st Cir., 12/22/04. Fictionalized for dramatic effect.

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