Bank of America recently learned the perils of terminating workers over age 40. One of its managers offhandedly suggested that a laid-off older employee retire, then later promised to help her get an interview for another bank job. However, he never followed through. Unfortunately for the bank, a jury believed that these incidents, along with the bank’s frequent use of an informal networking system for promotions, added up to age bias.
Longtime Employee Loses Job In Consolidation
Virginia Marques worked her way up over 37 years to become a senior credit administrator and vice president in the bank’s Regional Credit Administration office in Fremont. The bank eventually closed the Fremont office, transferring the work to other locations. Marques, 57, and the other Fremont staff were given 90 days to find new jobs in the company. Jerry Scott, 52, Marques’ supervisor, was transferred to the Rancho Cordova office. Marques turned down an offer of a junior credit officer position there because it paid less than her prior senior-level job. When another employee was given a senior credit position under Scott, Marques complained and asked why she wasn’t considered. Scott replied, “I’m surprised you’re fighting this. Why don’t you just retire and get a little job someplace?”
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Manager Offers To Help Find New Position
Although what happened next may have seemed relatively harmless, when it was combined with Scott’s comment, the stage was set for a major lawsuit. During the 90-day transition period, Marques said she asked Scott to help her obtain an open position in the auto lending department because Scott was friends with the manager. Scott promised to help set up an interview, but he didn’t follow up and nothing happened. Marques never found another job with the bank and was terminated.
Bank Sued For Age Bias
Marques filed suit, claiming Scott’s failure to help her land the auto lending job was motivated by age discrimination, as his remark about her retirement showed.The bank denied that Scott’s comment showed bias. Plus, it argued no discrimination occurred because Marques never applied for the auto lending position. A jury disagreed and awarded Marques $438,000.
Single Comment Can Suggest Bias
The bank asked the court to toss out the jury verdict, but the federal district court in San Francisco upheld the award. The court said Scott’s remark suggesting that Marques should retire could have reflected his opinion that she was too old to care about getting a new job at the bank. The comment also indicated that Scott didn’t help Marques find other work because of her age.
Formal Application Not Required
The court concluded that Marques did not have to formally apply for the auto lending job to have a discrimination claim. A general expression of interest usually isn’t enough to trigger a duty to consider an employee for a position. But this rule doesn’t apply if the employer commonly uses informal networking for job placement and promotes or transfers employees without requiring formal applications. In this case, the court found that the bank’s practices made it reasonable for Marques to believe that Scott’s promise to help her amounted to an assurance that she would be considered for the job.
What You Can Do
You can reduce your chance of encountering similar problems by taking the following steps:
- Require written applications. If an applicant sues you, your informal job networking process can make it difficult to show why you selected or rejected particular candidates. It’s best to always require formal applications for transfers and promotions and thoroughly document the basis for your decisions.
- Post job openings. A tap-on-the-shoulder system for promotions and transfers can cause big problems if an older worker wasn’t informed of an opening and younger employees were. Posting also helps reduce race- and gender-bias claims.
- Avoid age-based remarks. Caution all employees that comments that refer to an employee’s age – even if seemingly made in jest – are inappropriate and potentially illegal.