Read the facts of this real-life case and decide: Who won?

The facts:

A 50-year-old candidate applied for a job with the company. He claimed the hiring manager regarded him highly during a phone interview but changed attitudes when they met in person. According to the applicant, he repeatedly asked the manager several details about the job, but the manager refused to answer. After learning he didn’t get the job, he sued, believing his age was the real reason.

The employer said:

To fight the claim, the company pointed to the person who was hired: a 47-year-old woman. Given such a small  difference, how could the applicant’s age have played a factor?

Who won the case?

Answer: The applicant.

Why: It didn’t matter to the judge that the two candidates were only three years apart. There’s no set standard about how big an age difference there needs to be for a bias claim to be successful.

The real issue is whether or not the man’s age played a role in the decision that was made about him. And in this case, the company couldn’t prove it didn’t.

Cite: D’Cunha v. Eckerd Corp.

Read the facts of this real-life case and decide: Who won?

The facts:

When faced with budget problems, the employer reduced its workforce. To save the most, employees with the most seniority — and therefore, usually, the highest pay — were terminated. Two employees who were let go sued, claiming the policy discriminated against older employees.

The employer said:

Employees weren’t chosen for the layoff because of their age — they were chosen based on how long they had worked for the company. While there may be some overlap, the two factors are separate, and there was no intentional age discrimination.

Who won the case?

Answer: The employer.

Why: The court agreed that a seniority-based policy is not the same as having a policy based on age. As the judge said, “A decision based on years of service is not necessarily ‘age-based.’”

Therefore, the cost-cutting strategy was legitimate and non-discriminatory.

Cite: Allen v. Highlands Hospital Corp.

It’s a scary fact: The economy’s forcing many companies to reduce their workforces. Most HR managers don’t want to think about letting people go, but careful planning will help employers avoid bias claims from employees looking for a big payday.

A recent court case provides an example of how to reduce staff and avoid lawsuits:

Three women sued after losing their jobs in a company-wide reduction-in-force (RIF) targeting front-line managers.

The women were all over 40 years old, as were 14 out of the 19 terminated managers.

Also, before the RIF, 19 managers were female and 83 were male. Ten women (52% of all female managers) were laid off, compared to 11 men (13% of all males).

According to the women, those facts showed that the RIF targeted older, female employees.

Not necessarily, the court ruled.

Statistics like those don’t prove discrimination. The company can still show employees were chosen for the reduction based on consistent, non-biased criteria.

Fair and consistent decisions

In this case, the company did just that. Here’s an overview of the RIF plan:

First, the company grouped the managers by location and figured out which areas could be handled by fewer people. Then, they were placed into three tiers based on their most recent performance reviews.

Employees in the lowest performing tier were then ranked against each other. Their supervisors were all given the same set of criteria to complete the evaluation. The lowest-ranked employees on that list were terminated.

Long story short, the terminated employees were chosen based strictly on performance — not age or gender. The case was thrown out.

Some more keys to avoiding discrimination suits after layoffs:

• Document the planning – Before any individual employees are considered, write down the reasons the RIF is needed, which departments/locations will be targeted and how employees will be selected.
• Be consistent – If the focus is on performance, managers should do more than come up with a subjective list of who they think their best employees are. Supervisors should be given a list of factors to consider so that all employees are rated the same way.
• Don’t make exceptions – Managers may argue to keep or get rid of certain employees, regardless of the planned method’s results. But, as the court noted in the case above, selectively applying the RIF criteria may leave the company open to bias charges.

Cite: Sanders v. Southwestern Bell

In one recent case, an employee was fired after several warnings about poor performance. She was placed on two different performance improvement plans, but failed to improve.

She sued the company for age discrimination. Why? She claimed that other, younger employees struggled just as much but were given more chances.

The company justified its decision, saying that the woman’s performance was lower than the other struggling employees — and as a more experienced worker, the company had higher expectations of her.

The court agreed, and the case was thrown out. Employees with similar problems and violations don’t necessarily need to be treated exactly the same.

Managers can prioritize their actions, and it’s reasonable to hold more experienced people to higher standards than others.

Cite: Faas v. Sears, Roebuck & Co.

In a recent age bias case, the company hired a group of 20-something employees around the same time. The older employees in the department felt the younger folks were getting favorable treatment from their manager — there was even a rumor they were paid more.

One day, a screen saver appeared on a shared computer asking why young employees were higher paid than the people with more experience. In response, the manager made his own screen saver that read: “Because they are younger, dependable and more productive, that’s why!”

After that, one of the employees complained about age discrimination to upper management. Shortly after that, the manager told the higher-ups she should be disciplined for attendance violations, and she was suspended.

Then she sued the company. A jury awarded her $115,000 and the company appealed.

Who won?

The company won when the court overturned the jury’s decision.

Fortunately for the employer, an independent investigation showed the woman was in fact guilty of the attendance violations. Even if the manager raised the issue in the first place for biased reasons, upper management made the final decision objectively, based on the fact that she broke company rules.

Were that not the case, the manager’s irresponsible message on the computer could have gotten the company in serious trouble.

Cite: Furline v. Morrison

The three big employment cases the Court will rule on:

1. AT&T Corp. v. Hulteen

The case involves an employee who’s suing over lost pension benefits. She claims her benefits were lowered because of time she missed while taking two pregnancy leaves. That’s a violation of the Pregnancy Discrimination Act (PDA).

But there’s a twist: The leave was taken decades ago, before the PDA was passed. Under the company’s old policy — which was legal at the time — the time off wasn’t counted as hours worked for her pension eligibility. She won in both the district and appeals courts on the grounds that the law was in effect at the time she suffered the financial loss (i.e., when she retired).

2. Crawford v. Metropolitan Govt. of Nashville

An employee was fired after she served as a witness during an internal sexual harassment complaint investigation. She sued for retaliation.

The employer claims the laws barring retaliation against witnesses only apply to people who participate in formal EEOC investigations. The employee claims the law applies to her case, as well.

3. 14 Penn Plaza v. Pyett

As part of a collective bargaining agreement, employees signed a document waiving the right to sue for age discrimination. They sued anyway, claiming the waiver was unenforceable because the Age Discrimination in Employment Act guarantees them the right to sue.

We’ll keep you posted on how the Court rules.

In one recent case, a 54-year-old woman sued for age discrimination. The problems started when she got a new supervisor, who was transferred from another location. During the transition, he started working part-time at the woman’s location.

He referred to her by the nickname “Grandma.” And despite the fact that she’d gotten mostly positive reviews up until that point, he placed her on a performance improvement plan (PIP) — before he was even her full-time boss.

While the woman was on vacation, the employees who worked under her made a few screw-ups. The problems were held against her, and her supervisor gave her a demotion. Instead of accepting it, she quit her job and sued the company, claiming the boss tried to demote her because of her age.

In court, the company pointed to the documented PIP as evidence of the woman’s performance problems. But the judge didn’t buy it.

Based on the evidence, the PIP was necessary in the first place — the person behind the decision wasn’t even the woman’s full-time supervisor yet. Also, his nickname for her certainly didn’t help. So it looked like the supervisor preparing to discriminate and used the PIP as a way to justify his actions.

The lesson: Only legitimate documentation will offer protection in court.

Cite: McDonald v. Best Buy Co., Inc.

That’s right, the national advocacy group for Americans over 50 is being accused of bias against older workers.

The employee, 63-year-old Bonita Brady, says she was passed over for nine promotions before she lost her job in a reorganization — right before she would’ve been eligible for retirement benefits.

She claims her age was the reason she lost her job and is seeking $25,000 in damages. The AARP hasn’t commented on the case yet. We’ll keep you posted.

Yes, she can, according to one recent decision. Here’s what happened:

A 42-year-old employee sued her employer for age discrimination after she was demoted. She first went to a federal court, which threw her case out.

So what did she do? She tried again in a state court, suing under a Wisconsin law banning age discrimination. This time, her case was allowed to move forward.

The employer argued she was barred from suing again by the doctrine of “claim preclusion,” which prohibits people from suing the same defendant twice on the same grounds.

The judge disagreed. Since her first suit was under a federal law, and her second under state law, the suits weren’t technically on the “same grounds.”

Cite: Aldrich v. Labor and Industry Review Commission

The suit was filed after the company laid off 31 employees — 30 of whom were over the age of 40. The company argued that age played no part in the decision. The case was initially thrown out when the plaintiffs failed to prove the layoffs were age-related.

But the Supreme Court overturned that decision, saying the company had the burden to show the “disparate impact” was based on “reasonable factors other than age.” Previously, courts in similar cases ruled it was up to employees to prove there was bias.

The case now goes back to the circuit court to decide if the company met that burden.

What’s it mean for employers? Some experts say the decision will lead to more age discrimination suits, especially as more companies reduce their workforces due to a sluggish economy.

It’s a good reminder that when companies do have to lay people off, they need strong documentation of the decision-making criteria so they can prove age and other protected categories didn’t play a role.

Cite: Meacham v. Knolls Atomic Power Laboratory