Don’t let subjectivity, stereotypes, or statistics create age bias issues for your next RIF

Reductions in force are bad enough. Don’t let decisionmakers mishandle them and create litigation risks.

The plaintiff in this case had worked for his current employer and its three predecessors for over 27 years in tech-related positions. He was 58 years old.

In 2017, the plaintiff began reporting to a new supervisor. The relationship between the plaintiff and his supervisor was acrimonious from the start. The supervisor required the plaintiff’s subordinates to bypass the plaintiff and report directly to the supervisor instead. At the annual performance review, the supervisor gave the plaintiff poor marks, a first for the plaintiff during his time at the company. The plaintiff further claimed that the supervisor did not treat two younger employees (46 and 35) this way.

Eventually, the supervisor decided that the department needed to shed one employee. He spoke with the human resources director, who advised him to follow the company’s RIF guidelines. The supervisor worked with a human resources officer to develop criteria to evaluate the three managers, and they began with four general categories designated by the company’s guidelines.

But, the supervisors soon deviated from the guidelines by developing other subjective criteria, which ultimately resulted in the decision to separate the plaintiff.

Although he lacked any direct evidence, the plaintiff believed his age motivated the RIF decision.

Now, even if the supervisor did deviate from company protocol, subjectivity does not necessarily translate into unlawful bias. However, in this case, three problems with the RIF led the Fifth Circuit Court of Appeals to question whether age was the motivation factor.

First, The plaintiff received the lowest ratings for four subjective categories without any prior write-ups.

Second, the court believed that a reasonable factfinder could find that the supervisor designed the subjective criteria to give older employees low scores based on stereotypes that they are “inflexible.”

Third, the court found the statistical evidence “more concerning.” The average age of those terminated in the RIF was 55.9 years old, and the average age of those retained in the plaintiff’s group was 39.1 years old. The plaintiff retained an expert witness who opined that such an age disparity (16.8 years) in the RIF would occur by chance only 5.05% of the time. Therefore, a reasonable factfinder could look at this evidence and conclude that the defendant laid off the plaintiff because of his age.

Employer Takeaways

1. If your company has a set of published rules to follow to implement a RIF, do not allow decisionmakers to deviate from them.
2. If you permit decisionmakers to rely on subjective criteria, ensure that decisions based on those criteria have earlier documentation to support them.
3. Check the numbers before implementing the RIF, and be prepared to explain and support any age discrepancies (or other overrepresented protected classes). Otherwise, start over.