Most employers wouldn’t think that replacing a terminated worker over age 40 with someone who is much older would run afoul of the age discrimination laws. But a new case shows that even a seemingly uncomplicated termination like this can be seen as part of a pattern of age bias when examined under a magnifying glass by a jury.
Problems After New Employer Takes Over
Forty-year-old clerk Jeannie McKenzie and several other accounting department employees were laid off from Valley Memorial Hospital in Livermore. They were rehired by Canfield & Associates, which assumed the hospital’s accounting functions.A month later, McKenzie received a warning from her new supervisor charging that she left her department twice without approval. McKenzie apologized and explained that the hospital had allowed such absences. Canfield then assigned McKenzie many new responsibilities. But she quickly received another warning, this time for making several mistakes. Yet McKenzie’s performance appraisal still rated her “good” or “very good” in all categories. Just one week after the positive evaluation, McKenzie was fired. Canfield cited the warnings and a complaint that McKenzie had made a racist remark. Her duties were given to a former supervisor who was 16 years older than McKenzie.
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Jury Orders Employer To Pay Damages
McKenzie teamed up with three other former Canfield co-workers -all in their 40s and 50s – who were fired around the same time she was. They filed suit, claiming their terminations violated the age bias laws. A jury awarded them almost $110,000. But Canfield tried to get McKenzie’s verdict thrown out, arguing there was no evidence of age discrimination because she was replaced by someone older, not younger.
Court Won’t Overturn Verdict
A California Court of Appeal upheld the verdict. It explained that an employee over 40 who is replaced by someone older isn’t precluded from bringing an age discrimination claim if there is other evidence of age bias by their employer.The court said it was reasonable for the jury to look at all of the hospital’s actions to find discrimination. For example, the average age of the employees terminated around the same time as McKenzie was 51. And the company allegedly hired new employees who were substantially younger than the terminated workers. Plus, McKenzie’s older replacement was stripped of her supervisory duties when she took over McKenzie’s position and ended up resigning a year later. Also relevant was evidence contradicting Canfield’s stated reasons for the termination, including McKenzie’s positive performance review and an admission by another employee who owned-up to making the racial comment McKenzie had been accused of.
Sidestepping Problems
As this case shows, in age bias disputes juries won’t look only at the ages of the terminated and replacement employees, but will scrutinize all of the circumstances surrounding the termination. So if you must fire a worker who is 40 or older, first review any other recent or planned terminations to make sure there isn’t a pattern a jury could believe suggests bias. It’s also critical that any adverse actions you take are supported by performance evaluations and other consistent documentation. Past performance reviews that focus only on an employee’s good points and ignore their shortcomings are bound to spur problems if the worker is terminated later.