Examines laws and regulations impacting rights and responsibilities within the employee and employer relationship.
Topics include common law principles, discrimination, wage and hour law, National Labor Relations Act and other labor
and employment laws. focus is on federal laws governing employment.
Course Textbook Walsh, D. J. (2013). Employment law for human resource practice
(4th ed.). Mason, OH: South-Western
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Age discrimination has become an increasingly important topic as our workforce continues to age. The Age Discrimination in Employment Act ("ADEA") "protects employees 40 years and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment (United States Department of Labor, 2016). While the average age at Big Top Stores continues to climb, the average of our distribution center has stabilized at 31.4 years. I am concerned that age discrimination is taking place in the distribution center.
Bob Smith, the manager of the distribution center contacted me to discuss terminating Francisco Swisher. Mr. Swisher has been employed at Big Top for 15 years. During our conversation, Mr. Swisher was continually referred to as "old guy" and "grandpa" by Mr. Smith. Mr. Smith wants to terminate Mr. Swisher for pulling errors. For the past 11 periods, Mr. Swisher has made a high amount of errors. Mr. Smith has documented his conversations warning Mr. Swisher of his unsatisfactory error rate two times (6/1/16; 9/5/16). My concern is that Mr. Swisher repeatedly references Mr. Swisher's age (45) when speaking about his work performance. In addition, other employees at the distribution center have unsatisfactory error rates but are still employed. Mr. Swisher has made a complaint regarding Mr. Smith's attitude toward him in the past, and has stated he has grounds for a discrimination lawsuit.
The Age Discrimination in Employment Act (ADEA) of 1967 is the statute of concern. While other employees have unsatisfactory error rates, Mr. Smith is only recommending the termination of Mr. Swisher's employment. It appears Mr. Smith is making his decision with discriminatory intent, since he is treating Mr. Swisher differently than other employees (Walsh, 2013). This is a mixed motive case since there are both discriminatory (Mr. Swisher's age) and lawful (high error rate) grounds for dismissal. However, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) the Supreme Court ruled that "mixed motives analysis is not permitted in age discrimination cases" (Walsh, 2013, p. 70). The court ruled that the plaintiff (i.e., the employee) must prove through a preponderance of the evidence that age was the cause of the employer's action (in the case of Mr. Gross, demotion). The Gross case makes it more difficult to prove age discrimination. The Supreme Court rules that even if there is evidence that age was part of the reason the employer took action, the employee is still responsible for proving by a preponderance of the evidence (more likely than not 51%) that but for the employees age, the employer would not have terminated the employee. Mr. Swisher would need to show that he would not have been terminated "but-for" his age. Or, in other words, that age was the primary reason for Mr. Swisher's termination.
There are issues involved in Mr. Swisher's case that concern me. As noted, Mr. Smith has referred to Mr. Swisher's age repeatedly. While Mr. Smith insists that these are terms of endearment or that he is joking, it is unclear if this Mr. Smith's explanation would hold up in court. In addition, other employees with similar error rates are still employed and have not been recommended for termination. Based on these facts, and comparing Mr. Swisher's case to that of
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) I believe Mr. Swisher would have grounds for a strong case against Mr. Smith and Big Top Stores.
It is my recommendation that we do not terminate Mr. Swisher at this time. Currently we are potentially liable for an age discrimination suit, should Mr. Swisher decide to pursue this course of action. We need to take immediate action to change Mr. Smith's behavior. It must be made clear what action and words are unsuitable when managing the workplace. I suggest we establish guidelines throughout the organization regarding our age discrimination program. In addition, we should issue a written warning to Mr. Smith regarding this matter. Furthermore, action should be taken to ensure that all employees in the distribution center are being treated fairly and equally. Lastly, training should take place to help all employees understand the importance of treating employees fairly, and we should remind employees of our open-door policy ("see something, say something").
Gross v. FBL Financial Services, Inc. (2009). (No. 08-441) 526 F. 3d 356. Retrieved from https://www.law.cornell.edu/supct/html/08-441.ZS.html
United States Department of Labor. (2016). Age discrimination. Retrieved from https://www.dol.gov/general/topic/discrimination/agedisc
Walsh, D. J. (2013). Employment law for human resource practice (4th ed.). Mason, OH: South-Western.© BrainMass Inc. brainmass.com September 27, 2022, 4:59 pm ad1c9bdddf>