Age discrimination or legitimate termination? Firing a 65-year-old can be tricky

What should an employer do when faced with a longtime manager with stellar performance reviews who doesn’t adhere to company policy, misses deadlines, has been written up for sexual harassment, and may be responsible for committing fraud? And does it complicate the situation if that manager is 65 years old? 

Those were questions recently put to a group of attorneys who focus on employment law issues. Their answers provide insight on the legal issues involved in the situation.

Information has come to light that the manager’s department may be committing fraud in its documentation of paperwork, and, given the other concerns, the employer would like to terminate but is worried about the possibility of a wrongful termination lawsuit. That’s a legitimate concern, according to the attorneys, but the employer doesn’t have to feel handcuffed if it can show a legitimate reason for the firing.

“Unfortunately, there is no way to guarantee that he will not file a discrimination charge or a wrongful termination lawsuit,” says Ryan B. Frazier, an attorney with Kirton McConkie in Salt Lake City, Utah. “There is always risk if an employee is a member of a protected class.”

Since the manager is over 40, it’s possible he can make a claim under the Age Discrimination in Employment Act (ADEA). But the employer’s documentation may reduce the risk by showing business-related reasons for the dismissal.

“Fraud, failing to abide by company policies, missing deadlines, and, if there is sufficient evidence, sexual harassment are legitimate nondiscriminatory reasons to terminate his employment,” Frazier says.

But the employer needs to take care to show that the discharge isn’t because of the manager’s age. “Potential discriminatory actions could be used as evidence against you in a wrongful termination claim,” Frazier says. “Further, ensure that there are no other age discrimination or retaliation issues involving the employee before you take an adverse action against him.

Investigate first
Jonathan C. Sterling, an attorney with Carlton Fields Jorden Burt in Hartford, Connecticut, reminds employers to investigate and document reasons for termination. Just the fact that the employer believes it has legally defensible reasons for firing the manager isn’t enough. The possible wrongdoing must be documented.

Also, the employer needs to make sure it treats the 65-year-old manager the same way it treats others who engage in similar misconduct. “If other employees in the department engaged in the same conduct, they should be subject to the same punishment,” Sterling says. “If you have done those things, you should have a solid defense to a lawsuit.”

Past evaluations potential problem
Jason Ritchie, an attorney with Holland & Hart LLP in Billings, Montana, points out that the manager’s past evaluations may raise a red flag on the termination. The employer needs to consider whether the manager’s infractions happened before or after the last favorable evaluation. Also, the employer needs to determine if the sexually harassing behavior has stopped.

“If the company has known about his behavior for a long time and still gave him favorable evaluations, you’ll have a tougher time explaining why you terminated him now when you didn’t deem the misconduct severe enough to write up in his evaluations in the past,” Ritchie says. “If the developments are recent, however, follow your company’s policies and treat the manager like you would treat other employees who have engaged in similar misconduct.”

Mark M. Schorr, an attorney with Erickson & Sederstrom, P.C. in Lincoln, Nebraska, agrees the favorable evaluations pose a threat. “The fact that he has a history of outstanding evaluations throughout his employment presents a potential problem, so it’s even more important to carefully examine any shortcomings in performance that apparently weren’t addressed in past evaluations,” he says.

But the fact that the manager is in a protected category outlined in the ADEA “doesn’t insulate him from termination,” Schorr says. “As long as you are treating him the same as all your other employees and applying your policies in a nondiscriminatory manner (and you have appropriate documentation to support your decision), you should have a strong and defensible position for a legitimate termination.”