In age discrimination lawsuits, innocent comments can haunt you later.

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

Avoiding a ‘mixed-motive’ judgment in an age discrimination lawsuit

Imagine you demote a 59-year-old manager for poor performance. He sues the company for age discrimination, claiming his boss made several disparaging remarks about age.

In court you show he wasn’t qualified: He’d been demoted because sales had dropped dramatically during his tenure as a store manager. The court rules that you had a legitimate non-discriminatory reason for firing the manager, despite his age.

Sounds like a slam-dunk, right? Not always. Here’s a case where the ruling in favor of the employer was tossed out on appeal. The judgment highlights some common mistakes employers make when demoting an employee, especially one who’s a member of a protected class.

In cases like this, the reason for the demotion may be legitimate, but certain behavior on the part of the employer makes it look as though the action had “mixed motives.” And that can land an employer in hot water with an age discrimination lawsuit.

Facts of the case

Don Wexler was hired as a furniture salesman and promoted to store manager two years later. After nearly two years as manager, Wexler was summoned to a meeting with the company’s president and executive vice president. Wexler was told that he wasn’t cutting it as a manager. Sales at his store had dropped 30% in one year. And his own sales had dropped 48%. The company wanted new blood in the store.

They told him they were demoting him back to a sales position.

In that meeting, both the bosses made comments about Wexler’s age as well as the relative youth of his successor. They suggested Wexler was too old to handle the stress of management.

The next day, Wexler responded to his bosses with a letter addressing their complaints about his capabilities. Wexler’s response included a discussion of declining furniture sales nationally.

Wexler also noted comments one of the bosses had made just a few months earlier, indicating that the slow sales weren’t Wexler’s fault, and that advertising had been scaled back.

‘A terrific kid’

Nonetheless, six days later, Wexler was demoted. A store meeting was held to make the announcement.

Unbeknownst to his bosses, Wexler recorded the meeting. And at that meeting, both of his bosses made disparaging remarks about age. They implied that management had become too demanding for Wexler, so a new, younger man had been brought in for the job. “We thought he was absolutely a terrific kid,” said the president. “I think you will like him very much. He is a fine, proper young man … don’t be misled by his youth…”

Comments such as these aren’t blatantly discriminatory, but in an age discrimination case they can be extremely damaging.

Wexler filed an age discrimination lawsuit. In court, he showed that his bosses had made several other comments about age that underscored their bias:

Once, the VP had offered to retrieve a pen that Wexler dropped, “out of respect for age.” Another time, he described Wexler as “a bearded, grumpy old man.”

According to Wexler, the VP sometimes addressed him as “pops” or “old man.”

The district court found that the VP’s comments, while insensitive, were irrelevant, because there was a legitimate reason for demoting Wexler – i.e., he wasn’t meeting his boss’s expectations.

But an appeals court vacated that decision after Wexler showed that sales had continued to decline under the next two managers – both in their thirties. The appeals court said that Wexler’s employer hadn’t shown that he was unqualified for his job – only that sales were down. And even if the demotion had been based on his performance, when the court considered the VP’s half a dozen or so disparaging comments about age, it found that the firm may have had mixed motives for demoting Wexler.

HR 21 has covered several cases where companies have won lawsuits despite a boss’s insensitive remarks. Courts don’t want to intervene and tell you how to run your business. But in this case, the boss’s comments were pervasive enough to sway the court.

Remember, document poor performance, and don’t make any lighthearted comments that you wouldn’t want taped and played for a jury.

Cite: Wexler v. White’s Fine Furniture, U.S. Court of Appeals, 6th Circuit, No. 99-3929, 1/27/03.

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