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Was Termination Because of Poor Performance or Age Discrimination?

by Isabella Lee

The Eleventh U.S. Circuit Court of Appeals recently rejected the “same decision” affirmative defense in age discrimination cases following the U.S. Supreme Court’s landmark decision in Gross v. FBL Financial Services. The Eleventh Circuit ultimately decided that employers that use age as a reason for termination cannot seek to dismiss a case before trial by arguing that the termination decision would have been made anyway for reasons other than age.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Background
Josephine Mora was employed by Jackson Memorial Hospital as a fundraiser. She was 62 years old during the relevant time. Her initial supervisor became dissatisfied with her work performance and recommended to the hospital’s CEO that her employment be terminated. The CEO initially agreed but later decided to give her a different position in his own office, “where he could observe her more closely.” Mora worked in the new position for one month, during which time the CEO observed her errors and unprofessionalism. She was fired at the end of the month.

Mora claimed that the CEO stated he “need[ed] someone younger” that he could “pay less.” He allegedly said, “I need [a 25-year-old employee].” Two former employees corroborated her allegations. One stated that she overheard the chief executive say, “You are very old, you are very inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.” Another former employee stated that the CEO said Mora was “too old to be working here anyway.” The executive denied making the discriminatory-sounding statements, and a third coworker substantiated his version of events.

Mora filed an age discrimination lawsuit under the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. Under the Act, it is unlawful to discriminate against a person because of her age with respect to any term, condition, or privilege of employment.

The hospital asked the court to dismiss the case, raising the “same decision” affirmative defense. Essentially, the hospital argued that Mora would have been fired for poor job performance regardless of whether it discriminated against her. The district court agreed and dismissed the case in favor of the employer, and Mora appealed to the Eleventh Circuit.

State by state comparision of 50 employment laws in 50 states, including age discrimination

Eleventh Circuit overturns lower court’s decision
After the district court’s ruling, the U.S. Supreme Court decided Gross v. FBL Financial Services. In that case, the Court rejected the “mixed motive” age discrimination claim as well as the “same decision” affirmative defense. Thus, on appeal, the Eleventh Circuit didn’t consider the district court’s analysis of the hospital’s affirmative defense. Instead, it examined whether there was a significant factual question about whether the employer discriminated against Mora based on her age. After considering the statements presented by both parties, the appellate court concluded that it did. Accordingly, the district court’s ruling was tossed, and the case was sent back to the lower court.

Bottom line
Discrimination and harassment claims under the ADEA can result from offensive remarks about a person’s age. Simple teasing and offhand remarks can escalate into or be interpreted as serious and illegal harassment, even if an adverse employment decision (e.g., termination) following the remark has merit. This case is yet another reminder to employers. You must develop and promulgate antiharassment policies and ensure that discriminatory-sounding remarks about age or any other protected status aren’t tolerated in the workplace.