Documentation helps prevent age discrimination lawsuits

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Age Discrimination cases are won with documented evidence

There was nothing funny about Keith Rodger’s laugh. It was vindictive. “Tell me if I’ve got this right,” he told his boss, Jacob Asher, “I’ve been here for 23 years, worked my way up from salesman to senior VP….”

Jacob kept his cool. He knew that nothing could be gained through a confrontation. “You should be proud of your record here at Raven Real Estate, Keith,” he said.

Keith cut him off. “In 23 years, I’ve never had a complaint lodged against me. Not one. Right? And now that I’m 53, all of a sudden I’ve got a difficult management style? C’mon, you don’t think I see the writing on the wall? ”

“It’s true,” said Jacob. “You used to be more flexible, but lately you’ve become a bully. Yes, the complaints are new. And so is your negative attitude toward your staff.”

‘Your development plan’s illegal’

Keith reminded his boss of the company’s “development plan” – a strategy designed to identify younger employees with leadership potential and move them into management. “You can’t tell me that’s not a discriminatory strategy,” said Keith.

“It isn’t,” said Jacob. “I don’t want to argue with you about it, but the plan is legal, and this firm doesn’t discriminate against older employees.”

Keith sneered. “Yeah, right. How about when I overheard the financial analyst say that our management team had ‘too much gray hair’?”

Jacob shook his head. “That remark was unfortunate, but he wasn’t a Raven employee.”

“Yeah, but he said it to a senior Raven manager,” said Keith, “who said he’d take care of it. Next thing I know, I’m getting the boot – at age 53.”

Keith was fired, Jacob insisted, because his management style had become reckless and because he was a legal risk to the company. Keith filed an Age Discrimination in Employment Act lawsuit

Did Keith win his case?

The decision

No. Keith lost his age discrimination suit.

On the surface, it looks as though he might have had a good age discrimination case:

· The company stated in writing that it’s objective was to fill senior management positions with younger employees.
· A vice president had indeed responded, “We’re taking care of that” to the analyst’s “gray hair” remark.
· Keith brought into evidence a number of age-related remarks made by management.

In issuing its opinion the court said that the “gray hair” comment certainly indicated age-based animus, but there was no connection between the remark and Keith’s discharge. The person who made it didn’t work for the company. And the person who promised it was being taken care of had no connection to Keith – and no say in his employment status.

Keith was a poor manager

The court also said that the firm’s Development Plan wasn’t discriminatory: while it may have prevented older employees from advancing to senior management positions, it didn’t advocate firing older managers to make room for younger ones. That would have been discriminatory.

Finally, the court was swayed by the abundance of complaints that had been lodged against Keith. In the eyes of the law, Keith was fired because he was a poor manager and a potential liability.

Some managers who’ve been around for a while have a problem managing younger employees. Others become more rigid the longer they’re entrenched in the job.

This case shows that you can fire or demote an over-40 manager without fear of losing an age discrimination lawsuit – as long as you have documented evidence that proves the manager’s performance had deteriorated.

Cite: Sandstad v. CB Richard Ellis, Inc., U.S. Court of Appeals, 5th Circuit, No. 01-10808, 10/28/02. Fictionalized for dramatic effect.

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