Age Discrimination on Performance Evaluations

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

ADEA Lawsuits, Poor Performance, and Mistaken Ideas

Jo Kubert was livid while talking on the telephone with her former boss, Bill Levise.

“You think I will allow this to pass? Well, I won’t!” she said. “We both know why you pushed me out of the company. And I won’t let you get away with it.”

“That is not true, Jo,” Bill said, “You were fired after receiving warning after warning….”

“Nonsense,” said Jo. “You’re just looking to get rid of a 60-year-old executive salary and replace me with lower-paid workers.”

“Not true, Jo,” said Bill. “This is about your conduct, your punctuality, your personal appearance – you violated a lot of rules around here, and you received many written warnings.”

“Young people here made the same mistakes as I did and they didn’t get punished the same. You held me to a different standard,” said Jo.

“Not true,” said Bill.

Others warned

“Remember when Earl insisted on wearing jeans to work? How about when Jim got into an argument with his boss? Or when John missed three meetings? You didn’t suspend any of them. And they’re all under the age of 30. Curious, huh?”

Bill disagreed. “No one person ever broke as many rules as you did, Jo. You’ve been mailing it in for quite a while.”

“That’s all I’m going to say,” she said. And with that, she hung up.

Jo filed an age discrimination lawsuit, claiming she was fired not for breaking rules but because of her age.

Did Jo win her lawsuit?

The decision

No. Jo lost her age discrimination lawsuit against her employer.

In dismissing her age discrimination claim, the court looked closely at the employer’s history of adverse actions and saw nothing “pretextual” about Jo’s termination. She was fired for her poor performance, not for her age.

It was true there were times when an employee violated the dress code, or returned late from lunch or missed mandatory meetings. But no one matched Jo’s pattern of infractions.

Thus, the younger employees who hadn’t been disciplined for similar infractions were not “similarly situated.”

This case sends a positive message to employers: You can insist on high performance from everyone. If you must fire, these guidelines may help you avoid an age discrimination lawsuit:

    A documented decline in performance.
    Evidence of warnings citing specific infractions and consequences of failure to comply.
    Records showing how similarly situated employees were disciplined.

Cite: Jordan v. City of Gary, No. 03-3772, 7th Cir., 1/28/05. Fictionalized for dramatic effect

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