Employment & Labor Insider

Looking at the two cases together provides some good lessons for employers.

Employer 1: In our first case, from Ohio, a big company decided to outsource an entire function and terminated all the employees associated with it. The “outsourcee” had the option to hire or not hire the displaced employees, and it set up a program to allow them to apply for positions. Our plaintiff (we’ll call him “Kelvin”) applied for one of the outsourced positions but was rejected. Kelvin was 52 years old at the time. He sued the new company for age discrimination, and the court dismissed his case on summary judgment.

Employer 2: In our second case, from Michigan, the employer terminated a regional sales director (we’ll call her “Janet”) who was 55 years old and had disabilities resulting from a work-related accident. (She slipped on ice in a parking lot, but her injuries were much more severe than that sounds.) For reasons that will soon become clear, the court said that all of the plaintiff’s discrimination claims -- including sex and disability in addition to age -- could go to trial. (The court did dismiss her harassment claim.)

The good, and the bad-and-ugly

            Selection process

Employer 1: The new employer made the application process accessible to all of the employees who had held the same position with the old company. It was also easy -- all they had to do was click on a link and fill in their contact information. The hiring manager (age 51) who ultimately rejected Kelvin held telephone (not video) interviews with everyone who had expressed interest, and asked the same questions of each candidate. He did not review any personal information about any of the candidates -- at least, not at that stage. He also did not review their personnel files from the old company. The only documentation he did review was a report documenting performance in the old job. He had no information about anyone’s age, and because the interviews were done by old-fashioned telephone, he would not have been able to estimate age by the appearance of the interviewee. He took detailed notes of each interview, so he had a good record of what he asked, and what the candidates answered.

Employer 2: The selection process was not clear, and the employer’s story changed during the course of events. More than once.

            Rationale for decision

Employer 1: The notes from Kelvin’s supervisor at the old company indicated that Kelvin -- how shall I say it? -- liked to do his own thing. In his interview with Employer 1, Kelvin indicated the same -- that, even if his boss told him that something was a priority, he’d make his own decision about whether to actually treat it that way. Based on the supervisor notes and and that statement from Kelvin in the phone interview, the hiring manager determined that Kelvin would not be a good choice.

Employer 2: Who knows? Again, the employer's story kept changing. Which brings us to . . .

Does this fluid look suspicious to you?

            Consistency of explanation

Employer 1: Throughout the litigation, the hiring manager at the new company said that he rejected Kelvin because of his interview answer, which corroborated the notes from his old supervisor (both described above). The hiring manager had a legitimate explanation, and he stuck to it.

Employer 2: Employer 2 provided, in the judge's words, "a suspiciously fluid narrative." In the termination meeting, Janet was told that she was being terminated because of her performance. In the litigation, the employer said she was terminated as part of a reduction in force.

The “performance” rationale was suspect because Janet had received good reviews, was in the middle of the pack on her quotas (she contended she should have been higher) and ahead of some people who were younger and not terminated, and she had even received a big merit increase and a sales award not long before the termination.

The RIF explanation also had problems, in addition to the fact that the company didn’t assert it until the litigation began. The company eliminated a group of younger employees along with Janet, but those employees were in a department that was being eliminated. Janet was not in that department. The employer even mis-identified the "team" who had allegedly made the decision to terminate Janet. (As it turned out, it was her direct boss, acting alone.)

            Comparators

I blogged recently about the importance of comparators in discrimination cases.

Employer 1: Even though 52-year-old Kelvin was not hired by the outsourcee, the hiring manager did select two internal candidates who were older than Kelvin. Since they were internal, the hiring manager knew their ages. This is one more piece of evidence tending to show that the manager didn’t reject Kelvin because of his age.

Employer 2: The employees who were let go in the genuine RIF (department elimination) were younger than Janet. But Janet and one other co-worker in Sales were let go. Janet’s co-worker, like Janet, was a female over age 50. Oh! Oh! And one of the young guys who was to be let go in the genuine RIF was reassigned . . . to work for Janet's ex-boss . . . and allegedly then took over many of Janet’s accounts.

"Need I say more?"

You can see why Employer 1 won, and why Employer 2 is going to a jury. (My summary judgment disclaimer is here.)

4 rules when you have to make a selection

Here are four rules that are good for employers to follow when making selections for hire, or for terminations/reductions in force:

• In your hiring processes, shield yourself from information about candidates' protected status as long as you can. Or make your AI algorithm ignorant. It may not be possible to be as blissfully (and wisely) ignorant as Employer 1 was, but to the extent that you or your AI don’t know applicants’ races, sexes, ages, etc., that is a good thing. And I love the idea of audio phone interviews in the early stages. That won’t shield you from all knowledge about an employee’s protected status, but it should help, especially with age. (Unfortunately, when making a promotion or termination decision involving a current employee, you won’t be able to shield yourself because you already have access to that information.)
• With both hiring and termination decisions, make sure you have a legitimate, non-discriminatory rationale for your decision, and make sure your rationale is supported by -- you know -- the evidence.
• Don’t change your explanation. Or provide a "suspiciously fluid narrative," in the words of the Honorable David M. Lawson. That is viewed unfavorably by the courts, and also the Equal Employment Opportunity Commission and other agencies who enforce anti-discrimination laws.
• Make sure similarly-situated employees are treated similarly. A 55-year-old who is great should be treated just as well as a 30-year-old who is great. A 30-year-old who is lousy should be treated just as badly as a 55-year-old who is lousy.

And, finally, let's give that hiring manager for Employer 1 a gold medal!

He did such a good job, he made me cry.