Category Archives: Age Discrimination

Quirky Question # 173, Conflict with Supervisor Does Not Justify Transfer


One of our employees, who happens to be in the protected age group, has a (charitably described) ‘strained’ relationship with his boss. He feels that he has been subjected to unfair criticism and that his supervisor’s performance assessments of his abilities do not reflect the true value of his contributions.

He is convinced that he will never “get a fair shake” from this supervisor and has asked that we transfer him. We don’t really have a comparable position in our organization. Moreover, we’re not convinced that transferring an underperforming employee at his/her request is necessarily a good precedent to establish.

If this employee refuses to continue working for his current supervisor, can we fire him? Answer→

Courts Must Referee Expert Battles In Deciding Class Certification Question

Mark’s Analysis of Class Certification Issues

The Minnesota Court of Appeals recently addressed the question of whether a court could weigh competing evidence at the class certification stage.  In deciding that issue, the Court also clarified the standard of proof necessary to certify a class.  Whitaker v. 3M, 764 N.W.2d 631 (MN Ct. App. 2009).  In the past, many courts had been reluctant to enter the fray of competing expert opinions when deciding whether to certify a class, particularly if those opinions also went to the merits of the lawsuit.  Many courts had also held class proponents to a relatively low standard when assessing whether they had met the class certification requirements set forth in the rules of civil procedure. Answer→

Stray Remarks, Quirky Question # 108

Quirky Question # 108:

We are a communications company in Colorado.  We recently terminated a sales employee for poor performance and he has since filed a charge against our company claiming his termination was the result of age discrimination.  In support of his charge, the former employee alleges that over a year ago he overheard the president of the Company say “I’ll be happy when they get rid of some of these old geezers – the younger ones make less mistakes.”  The former employee asserts that this statement is indicative of discrimination at our company and will likely want to introduce it as evidence if the case goes to trial.  The president in our Company does not make any direct hiring or termination decisions, nor is his approval required for hiring or termination of employees – these decisions are made solely by the direct managers of each department in which the respective employee works.  In this case, the president did not oversee the former employee, did not review the employee and, most importantly, did not participate in any way in the decision to terminate employee.  In fact, he did not even find out about the termination until the day after the employee was informed of the termination.  Further, the president completely denies making the statement.

Will the former employee be able to introduce evidence of the statement at trial to prove discrimination? Answer→

Gross v. FBL, Supreme Court Age Discrimination Decision

Gross v. FBL Financial Services, Inc., Age Discrimination Cases Under the ADEA

On June 18, 2009, a sharply divided Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., No. 08-441.  The 5-4 decision establishes that plaintiffs pursuing claims of age discrimination under the federal Age Discrimination in Employment Act (ADEA) will be held to the more stringent “but for” standard of proof than plaintiffs pursuing claims under the other principal federal anti-discrimination statutes.  Under Title VII, for example, if a plaintiff can prove that the protected status (race, gender, religion, etc.) was a “motivating factor” in the adverse employment action, the plaintiff has established a claim.  Based on Gross, that will not be true for federal age claims.  Moreover, the nation’s high court repudiated the concept that the burden of persuasion should shift to defendant in a federal age discrimination mixed motive case.  Again, this holding distinguishes age discrimination claims from other types of mixed motive discrimination claims.

Specifically, the U.S. Supreme Court held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”  In addition, “[t]he burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”  These companion holdings are likely to make it more difficult for plaintiffs to prove age discrimination claims under the ADEA. Answer→