Age Discrimination

Age Discrimination: “When Are You Going to Retire?”

Robert C. Lockwood
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Asking an employee about his retirement plans could be evidence of age discrimination.

Sometimes, business planning runs afoul of the law.  For example, it is perfectly reasonable for an employer to want to make plans regarding the future of its work force.  So, it might seem reasonable to ask an older employee when he or she plans to retire.  Yet, one Alabama employer is facing potential liability for age discrimination, in part because a supervisor asked an older employee if he had “plans to retire.”  See Henry v. Vencore Srvcs and Sols., Inc., No. 5:16-cv-01814-AKK, 2018 WL 1456636 (N.D. Ala. Mar. 23, 2018).

Keith Henry retired from a career in the aerospace engineering profession at age 57 in 1992.  But, after the 2008 financial crisis, he went back to work for Vencore in 2010 at age 74.  In early 2014, Vencore transferred Henry to work as a stress analysis engineer on  a contract related to Army CH-47 helicopters.  The supervisor for the CH-47 project, Cliff Meyers, soon asked Henry whether he had “plans to retire.”  Henry received positive evaluations while working on the CH-47 project, but Vencore terminated his employment two-and-a-half years later, when he was age 79.

Vencore claimed that Army budget cuts required termination of one of the CH-47 project’s five team members.  Henry was 17 to 28 years older than the other four team members.  Cliff Meyers initially testified that he selected Henry “purely on his own view of each employee’s ‘capability.'”  But, Meyers later modified that testimony to add his belief that Henry could not perform “finite element analysis.”

United States District Court Judge Abdul Kallon found sufficient evidence to require a jury trial on the issue of age discrimination.  Judge Kallon relied upon the following facts:  (1) Meyers, the primary decision maker, asked Henry about his retirement plans; (2) Henry was the only team member laid off, even though he had as much or more experience than the rest of the team; (3) he was substantially older than the rest of the team; and (4) although Vencore laid off a younger individual several months later for economic reasons, it subsequently rehired that employee for the same position Henry held.

Judge Kallon was also not persuaded by Vencore’s “finite element analysis” defense.  Myers admitted that stress analysis engineers like Henry did not need to perform finite element analysis; a job posting for the position did not mention finite element analysis; and Henry’s positive evaluations never mentioned the need to perform finite element analysis.

Anything you say to an employee can, and will, be used against you in a court of law.  Asking about an employee’s retirement plans, by itself, is not enough to impose liability for age discrimination.  But, such questions can be one important piece of evidence in building a larger case.

Age Discrimination: “Fire All the Old People”…”Just Kidding.”

Robert C. Lockwood
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There is no “just kidding” defense in age discrimination law suits.

If one of your executives writes “Fire All the Old People,” you can expect difficulty in defending a claim under the Age Discrimination in Employment Act.  (“ADEA”)  Moreover, the odds are very slim that you can win your law suit by claiming that your executive was “just kidding.”  Those are the hard lessons that an Alabama employer learned in Wheat v. Rogers & Willard, Inc., No. 16-0282-WS-B, 2017 WL 4278347 (S.D. Ala. Sep. 26, 2017).

Ralph Wheat was a 77-year-old project manager/estimator when he was fired on May 2, 2014.  The termination decision was made by the majority owners of his company, Mike Rogers and Steve Willard.  One year prior, May 2013, Rogers attended a conference and made notes.  Under a heading titled “Attracting and Retaining employees,” Rogers wrote “‘Fire all the old people.’ Fiat President.”  Next to that statement he wrote:  “many large companies bringing in new bloo[d].” Rogers also wrote:  “Older guys — Ralph & Jerry — Mentor to their replacements — same with Diane.”  Finally, Rogers wrote:  “‘Paint’ a vision of what company will look like in three years, i.e., new, younger employees ….”

United States District Court Judge William Steele found that those notes were direct evidence of Mr. Rogers’ discriminatory intent under the ADEA.  In attempting to defend the case, Rogers & Willard offered an affidavit from Rogers for the proposition that he did not really mean what his notes said.  Based upon that assertion of Rogers alleged true intent, Rogers & Willard asked to have the case dismissed at the summary judgment stage.  Judge Steele soundly rejected that argument:  “The defendant offers no legal authority for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote — a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense. …[T]he Court rejects the defendant’s unsupported argument.”

Judge Steele’s ruling means that a jury will decide whether Mike Rogers was biased against older people, and whether Ralph Wheat’s termination violated the ADEA.  The Wheat case simply reinforces an important point that I’ve written about before:  Anything you say can and will be used against you.  The Wheat case might have turned out differently if Mr. Scott never made those notes.  But, once he put his thoughts on paper, he provided the terminated employee with enough ammunition to send the case to trial.

Age Discrimination: Applicants Cannot Assert Disparate Impact Claims

Robert C. Lockwood
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Age Discrimination ADEA Disparate Impact

The Eleventh Circuit Court of Appeals has ruled that job applicants cannot assert claims for disparate impact discrimination under the Age Discrimination in Employment Act (“ADEA”).  Villareal v. R.J. Reynolds Tobacco Co., No. 15-10602, 2016 WL 5800001 (11th Cir. Oct. 5, 2016).

Most employment discrimination claims are “disparate treatment” claims.  Under a “disparate treatment” theory, an employee or job applicant claims that an employer intentionally discriminated on the basis of a protected characteristic — like race, gender or age.  In contrast, a “disparate impact” theory does not require proof of intentional discrimination.  Instead, the employee or applicant must demonstrate that a neutral policy disproportionately impacts people with a protect characteristic.

In Villareal, a job applicant claimed that hiring guidelines of R.J. Reynolds disproportionately impacted older applicants for positions.  Those guidelines suggested that a “targeted candidate” should be someone “2-3 years out of college,” who “adjusts easily to changes.” The guidelines also told a contractor reviewing applicants to “stay away from” applicants “in sales for 8-10 years.”

Villareal was a 49-year-old whose job application was rejected by R.J. Reynolds.  He sued under the ADEA and claimed that the hiring guidelines had a disparate impact on older applicants.  Nevertheless, the Eleventh Circuit found that the ADEA categorically does not permit disparate impact claims for job applicants.

In particular, the Court found that the ADEA only permits disparate impact claims under Section 4(a)(2) of the Act.  But, Section 4(a)(2) only applies to “employees” by making it “unlawful for an employer … to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”  29 U.S.C. 623(a)(2).  Because job applicants, by definition, are not yet “employees,” they cannot sue for disparate impact.

Villareal provides a victory to employers, because it eliminates an entire class of potential discrimination claims.  Nevertheless, Villareal does not provide complete protection for policies like the guidelines used by R.J. Reynolds.  Potentially, the job applicant in Villareal could have sued for age discrimination under a disparate treatment theory.  But, those claims were barred because Villareal failed to file a charge of discrimination with the EEOC within 180-days of denial of his application.