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→

“Me Too” Evidence, Quirky Question # 63

Quirky Question # 63:

We are defending against a claim of age discrimination.  The plaintiff has lined up a number of current and former employees, each of whom apparently intend to testify that during their employment, they also were (or are) victims of age discrimination.  Is this legit?  These other individuals never filed claims of age discrimination against us. Answer→

Bad-Mouthing the Company, Quirky Question # 39

Quirky Question # 39:

I am the operations manager for a food distributor.  One of our other managers, a long-term employee, was recently demoted to a position that places him in frequent contact with our customers.  He was unhappy about that demotion and has filed a charge of age discrimination with the EEOC.

One of our customers has now called to complain that this employee is constantly bad-mouthing the company, saying that he has been mistreated by senior management, and talking about the “$10 million lawsuit” he plans to file.  Given the damage this kind of talk can do to customer relations, we fired the employee.

Our ex-employee has now sued our company, not only for age discrimination, but also for retaliating against him for exercising his statutorily-protected rights.  Should we worry about these claims? Answer→

Age Discrimination, Volunteering for RIFS, Quirky Question # 23

Quirky Question # 23:

I read with interest your Quirky Question # 22 regarding age discrimination and releases of age discrimination claims.  We have a slightly difference issue.  Our company has gone through periodic reductions in force, stemming both from increased automation of our manufacturing processes and economic downturns.  Our RIF procedures have been carefully constructed, involving evaluations of 10 different criteria and independent evaluations of each employee on each criterion by two supervisors.  We typically offer severance packages to the employees we lay off (1 week for each full year of service).It is not uncommon for our employees with greater seniority (often 20 years or more) to volunteer for layoffs.  As they point out, this relieves their managers from the difficult ranking decisions and laying off younger employees who wish to continue their employment.  Of course, they benefit because they receive the substantial severance compensation – compensation for which they would not be eligible if they simply retired.This seems like a win-win.  Are we overlooking anything? Answer→