Employer prevails in unique age discrimination suit

As the 19th century saying goes, “Silence is wisdom when speaking is folly.” Here at GroupOne Background Screening, we suggest employers take this advice to heart. It appears in a unique case in Ohio, some supervisors did not. While the employer prevailed, the case never-the-less cost money to defend.

In January, a court in Ohio found in favor of the defendants in an unlawful termination suit. The ex-employee claimed her bank employer fired her because of her age – in this case 47 – in violation of the Age Discrimination in Employment Act (ADEA).

The bank pointed to the employee’s noncompliance with a policy change as the reason for termination. The new policy required employees to submit time off requests in writing one month in advance. The disgruntled ex-employee claimed she had requested time off orally and eventually submitted the form one day prior. But due to other workplace issues (including a negative attitude), the President/CEO terminated her employment.

The ADEA prohibits employers from terminating employees “because of an individual’s age.” The terminated employee needed to prove she was fired because of her age.

Here’s where folly enters the picture. Prior to the employee’s termination, the bank CEO made several statements including: (1) that another employee in her eighties had a “limited shelf life” and had reached her “expiration date;” (2) that he intended to reduce the employee’s hours until she quit; and (3) he would like to “hire younger tellers.”

The court held that while these statements were considered evidence of discrimination, they were not made near the time of termination. Additionally, none of the statements were related to the bank employee’s termination. In fact, they were about an entirely different employee.

While the terminated employee succeeded in shifting the burden to her “chatty” CEO, the court was satisfied that she was fired for insubordination.

The terminated employee presented arguments to support her claim that her termination was illegal: (1) the CEO’s ageist comments show her termination was age-motivated; and (2) another younger employee engaged in the same conduct but was not terminated.

The court dismissed the arguments. It reasoned that while the terminated employee eventually turned in the time off form, she was nonetheless insubordinate for failing to submit it in a timely manner. It further held that the CEO’s comments were insufficient as they were directed towards another employee.

The ex-employee further alleged that her termination was illegal because the younger employee under the age of 40 similarly failed to submit the time off form and was not terminated. The court found that unlike the other employee, she was in a managerial position while the other employee was not and therefore not subject to the same standards.

While the bank won its day in court, most certainly there was a nice bill to pay the defense lawyer.

Employers should ensure that policies are communicated and signed off on by all employees. In addition, make sure those policies are consistently applied and document the reasons a different position was taken towards an employee.

Equally important, managers (and chatty bank CEOs) should be careful what they say. Even innocent or joking statements could be misconstrued and lead to expensive “folly.”