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Being Replaced by Computer Program Isn’t Age Discrimination

Who knows? In 20 years, there might be a robot writing these articles; we’ve faced that reality. Eventually, we may all be phased out by machines, programs, and metallic entities, the likes of which we’ve yet to even imagine.

As the world has become more automated and efficient, we have all witnessed downsizing and have subconsciously come to the realization that, for instance, sock-making machines don’t need health care benefits or 401(k) contributions — or minimum wage, for that matter. As a result, sock-making humans may become obsolete.

As futuristic companies wrestle with deciding when to allow nonhumans to take over humans’ jobs, they can take some comfort in a recent case from the Eleventh U.S. Circuit Court of Appeals. Fortunately, there are some lessons for us regular human companies, too.

Mastering HR: Discrimination

All good things must come to an end
Thomas Gortemoller worked for a furniture company as its merchandise manager of imports. His job was to conduct research on which new products to produce, create specifications, work with designers on products, select ideas produced by the company’s designers, and travel overseas to look at products. In short, he was there to decide which kinds of furniture would sell. Ultimately, he became responsible for designing and merchandising imported furniture. He was 49 years old when he was hired in 1996.

In June 2007, Gortemoller was fired without warning at age 59. Just nine months earlier, he had received an excellent performance evaluation. Even more intriguing, he wasn’t given a reason for his discharge; he was told only that the line he supervised was “old.” He received a generous severance.

Gortemoller sued for age discrimination, claiming he was replaced by Todd Evans, who was in his mid-30s and had worked for the company for eight years. The district court threw out his case without a trial, and he appealed to the Eleventh Circuit.

Obsolete or irreplaceable?
Gortemoller lost on appeal because the Eleventh Circuit determined that “no one in particular” performed his job duties once he was terminated. Although he pointed to Evans as his younger replacement, the court found that the only duty Evans performed that “arguably” resembled Gortemoller’s work was traveling overseas to look at products. Additionally, the court determined that Evans had done that before Gortemoller’s termination, so that wasn’t enough to cast him as a replacement.

The court placed even more importance on the fact that the company filled Gortemoller’s role as intermediary between salespeople, customers, and designers with a computer program called Design Net. The Web-based program allowed salespeople to communicate directly with designers about which products were needed and allowed customers to provide feedback directly to salespeople and designers. (And Design Net, as it turned out, didn’t need a fancy office, paycheck, birthday greetings, or expense reimbursements.)

Since one of the things Gortemoller had to show to win his case was that he was replaced by or otherwise lost his job to a younger individual, being replaced by a Web-based computer program simply wasn’t enough for him to prevail.

This isn’t Star Trek (yet); I’m still hiring humans
We know that replacing your employees with a program, machine, or robot — as tempting as it may sound some days —  isn’t a decision you have to wrestle with on a daily basis. The Eleventh Circuit made it clear that what Gortemoller was really arguing was that his job duties were absorbed by Evans even though no one was hired specifically to replace him.

With tightening budgets and changing workforces, you may find yourself facing a very similar decision in the future — that is, deciding an employee’s position isn’t needed anymore, terminating him in a restructuring, and parceling out a few of his former job duties here and there to other employees (who may in fact be younger).

In this case, the court found that it was important that no employees were hired to replace Gortemoller (there was actually a drop in headcount), and no employees were hired in the time leading up to his termination. Evans had been around for a long time. In the end, the company gained efficiency and saved money with the restructuring, which helped it win the “no replacement” argument.

Better to shoot straight in terminations
Since we like to Monday morning quarterback around here, we want to point out that it seems a little shady that Gortemoller was never given a reason for his termination and that it happened so soon (and so abruptly) after he received a good performance review. Based on the end game in this litigation, we know that the discharge decision was the result of the company deciding it wanted to change the process it used to figure out which furniture it needed. Unfortunately for Gortemoller, the new process made his job obsolete. Design Net allowed for more direct communication and feedback, and the company believed it was the right direction.

Had the company called us to vet this termination before it happened, we would have advised it to get its rationale for the termination decision straight and communicate it clearly, professionally, and matter-of- factly to the employee. Workers don’t like mysteries when it comes to the reason for their termination. Of course, that seems redundant because employees obviously don’t like being fired under any circumstances. But when an employee doesn’t understand why he’s being terminated and the decision comes from out of nowhere, he is much more likely to boldly go find an attorney and pursue litigation (particularly if he’s nearly 60 when he’s fired).