It's tough to prove age bias after getting caught sleeping on the job

July 11, 2012
By Eric B. Meyer on July 11, 2012 7:00 AM | | Comments

Sleep at workI was reading this Third Circuit decision yesterday about an employee who got demoted for sleeping on the job, and all I could think of was Homer Simpson. For not unlike Homer J., a nuclear safety technician, this employee was responsible for monitoring his plant's equipment to prevent malfunctions that could result in explosions, property damage, injuries, and fatalities. Except, unlike Homer, the former employee was allegedly found sleeping on the floor of his office, with a pillow, blankets, and an alarm clock nearby. Now that's what I call an all-out Costanza! All that's missing here are the empty calories and male curiosity, eh Georgie?

Instead, we are left with a baseless age-discrimination lawsuit from a employee, claiming that when he was demoted, it wasn't for sleeping on the job. Rather, it was because of his age and an unwritten policy "to get rid of older employees," premised upon a single stray remark and slipshod investigation into the sleeping incident.

Smell that? Yeah, me too... (And it's not what The Rock is cookin')

To prove age discrimination, an employee must demonstrate, at a minimum, that the employment action taken occurred under circumstances that give rise to an inference of discrimination. One stray remark and a poor investigation -- even if true -- do not indicate that age was the motivating reason behind an employment decision, which is the burden that a plaintiff must meet to prove age discrimination.

What's the lesson to be learned here? If you are going to sleep at work, don't get caught, of course. Or maybe do your sleeping at home...in a bed.