Age Discrimination and Constructive Discharge
Did they constructively discharge aging worker?
Imagine your business is struggling and management has no choice but to ask an aging executive to change the way he does things. He resists. His boss applies pressure, making demands that the executive finds arbitrary and humiliating.
Frustrated, he quits and sues your company for age discrimination, claiming he was the victim of a “constructive discharge.” This common phenomenon – also called “firing by process” – is particularly sensitive with older managers because very often their age truly is part of the problem. Unwillingness to change, inability to learn new skills the company requires to be successful, feelings of entitlement – all these can rankle younger executives seeking to eliminate obstacles to top performance.
Fortunately for companies, the courts set a high standard for proving constructive discharge in age discrimination lawsuits. Here’s where a company took a hard line with an aging manager an age discrimination case, but in the process did a lot of little things right and undermined the manager’s argument that the company drove him to leave merely because of his age.
Facts of the case
Ramon Suarez, age 58, was president of CaribAd, a subsidiary of advertising firm Pueblo International. Business took a downturn and Suarez’ boss, Pueblo president William Keon, learned from clients that the quality of CaribAd’s work had deteriorated. To turn things around, he asked Suarez to hire a new creative team.
Suarez resisted, so Keon called and told Suarez that:
- Most CaribAd employees would be transferred to Pueblo’s home office in another city. However, they would still report to Suarez. /li>
- Henceforth Suarez would be responsible for drumming up third-party business. “You’re going to have to sing and dance alone,” Keon told him./li>
- Suarez had to put together a “relocation report” and have it on Keon’s desk the next morning.
Suarez took the news badly. To him, it seemed like he was being asked to “knock on doors like a traveling salesman.” Writing an overnight report was make-work, designed to humiliate him./li>
Suarez became depressed and took several months’ sick leave. Keon sent him flowers and a get-well card, and repeatedly expressed the hope that Suarez would come back soon.
When he requested an extension, Keon said no and beseeched Suarez to return to work. Suarez refused to do so and stayed absent several more months. Keon viewed this as a de facto resignation and officially released Suarez.
Suarez sued for age discrimination, alleging an age-based plot designed to render him obsolete. He maintained that:
- Keon once stated that his [Suarez’] proposals “looked old” and that another executive said in a meeting that the company needed “new blood.”
- Having to work overtime to write the relocation report was an example of Keon pushing too hard and making working conditions intolerable.
- Keon rendered him irrelevant by excluding him from high-level meetings and by relocating his staff.
- The new account acquisition job responsibilities were onerous and designed to set him up to fail.
- The decision
The court bought none of his age discrimination lawsuit. The executives’ alleged ageist comments were “ambiguous, but also much too innocuous to transform routine managerial decisions in to something more invidious.”
The ruling stated that forcing Suarez to write the report was “at worst, petty tyranny,” and that it fell far short of the standard for constructive discharge under age laws.
Regarding Suarez’s exclusion from meetings, Pueblo was able to show in court that it had revamped its meeting policies across the board, requiring far fewer people to attend. Suarez could not show that he was treated differently from any other senior executive.
Finally, concerning Keon’s requirement that Suarez’ duties expand to include new account development, the courts were equally unsympathetic with Suarez’ complaint. “Executives routinely are expected to work long hours and perform under pressure. [This] increase in work requirements…does not surpass reasonable expectations….”
What the company did right
Pueblo survived this age discrimination lawsuit because it:
1. Gave Suarez a chance to hire a new staff and turn things around. He refused.
2. Ensured he’d maintain his supervisory role over his new, relocated staff.
3. Beseeched him to return to work.
4. Maintained his salary
5. Sent him flowers (don’t laugh; these things matter).
The courts eloquently laid out the bottom line in these sorts of cases:
‘The workplace is not a cocoon, and those who labor in it are expected to have reasonably thick skins – thick enough, at least, to survive the ordinary slings and arrows that workers routinely encounter in a hard, cold world. Thus, the constructive discharge standard, properly applied, does not guarantee a workplace free from the usual ebb and flow of power relations and inter-office politics.”
Cite: Suarez v. Pueblo Int’l. U.S. Court of Appeals, 1st Circuit, No. 99-2307, 10/11/00.
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