What happens when everyone in the same position is over 60 and gets fired?


Is it age bias? Or just business?

In a decision I read last night, the plaintiff spent more than two decades working as a system technician for the defendant. According to the defendant, it made a business decision to terminate all employees holding the plaintiff’s position because of COVID-19 and the move away from copper-wired telephone lines.

All system technicians, including the plaintiff, were over the age of 60 years. Thus, the plaintiff deduced that age motivated the reduction in force. So, he filed suit under the Age Discrimination in Employment Act of 1967.

But hold on. Let’s hear the employer out, shall we?

According to the VP of System Maintenance and Plant Ops, who was charged with determining which positions to cut from the company, he sought to eliminate positions that focused on “single skill sets” and to incorporate those skill sets into other positions to improve efficiencies within the company. As such, the duties of the telephone copper wire technician position (System Technician-ILEC) were folded into the broader System Technician position, which required a different and broader skill set.

Plus, what I told you that the plaintiff was not without options? The defendant told him he could apply for one of the two soon-to-be-open System Technician positions. However, the plaintiff decided not to apply because it would have resulted in a pay cut.

So, how do we analyze the age bias claim?

Let’s assume that the plaintiff has at least made an initial showing that age could have motivated the decision here. Once that happens, the employer has the burden of production to articulate some legitimate, nondiscriminatory reason” for its conduct. Downsizing for economic purposes is a legitimate rationale for terminating an employee.

Once the employer offers a justification, the plaintiff must show that the employer’s proffered reason for its actions is pretextual and that the employer did intend to discriminate. This has to be more than the employee’s “say-so.” Instead, a plaintiff must point out implausibilities, inconsistencies, incoherencies, or contradictions.

Here, the plaintiff did not directly address the defendant’s business judgment. Instead, he argued that the defendant never offered older employees the chance to cross-train (as it did for other younger employees). But, his argument ignored evidence that System Technicians were already required to have a broader skill set than he held. It also overlooked the efficiencies of requiring those employees who faced a shallower learning curve to pick up one more skill set rather than forcing those with one or two skill sets to learn a host of new ones.

More importantly, he did not argue that the company would have denied him the chance to train had he applied for and gotten a System Technician position.

Just because layoffs affect older workers doesn’t mean that employers target them because of age. And courts do not second-guess routine business judgments that, alone, do not evidence discriminatory motives.

“Doing What’s Right – Not Just What’s Legal”
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