Age Discrimination: Even AARP Is Not Immune

AARP, the national association that advocates for older Americans, is being sued by an ex-employee, who claims she was discriminated against because of her age, so reports the New York Times. The woman, Bonita Brady, claims she lost her job in a reorganization and then was passed over 9 times for other positions, despite the fact that she had excellent performance reviews in the past. AARP has not responded to the claim.

There are several things that may be going in this case. But first, here is a primer on age discrimination. Age is covered by the Age Discrimination in Employment Act of 1967 and is administered by the EEOC. It has been amended by the Older Workers Benefit Protection Act and the Equal Employment Act of 1991. Basically the law protects workers over the age of 40 from discrimination in all aspects of employment. Employers have to make decisions about employees or candidates based upon factors other than age. If an employee is being terminated or laid off they can be asked to sign a letter waiving their rights to sue if: 1) they are given something of value in return (read severance here), 2) they are given 21 days in which to make the decision (45 days if it is a group layoff), 3) they are informed they have the right to consult an attorney, and 4) they have 7 days in which to rescind the agreement.

There are a couple of Supreme court cases that have major impact on age discrimination. The first was General Dynamics Land Systems, Inc. v. Cline in 2004 said that the law was meant to protect workers over the age of 40 from discrimination in favor of workers under the age of 40, not from workers over the age of 40 but of a different age. The case dealt with benefit favoritism for workers over 50 but not for workers ages 40-49. A couple more recent Supreme Court decisions allowed older workers to file disparate impact cases. As an example, any skills test requiring computer skills might have a disparate impact on older workers.

So in the AARP case we started with a few things may be going on. First, Ms. Brady may have been passed over several times, but if she was denied because AARP hired someone who was also over the age of 40 she may not have a case. She may not have had the skills they need to fill the position, despite the good performance reviews. Secondly, perhaps the decision-making here was based upon "nice" performance reviews rather than "accurate" performance reviews. It may be in reality that her boss(es) may have been wishy-washy in their evaluation of her performance and she was not really as good as they put down on paper. And then when it came down to having to make a decision on her to fill a spot they really did not think she was capable of doing it. So they passed her over. She got upset and filed a lawsuit claiming discrimination. Whether this is the case or not, it is a good reminder to be accurate in performance evaluation, because if you tell people they are good, when indeed they are not, when you let them go they are going to attribute it to discrimination in some form. After all, you have been telling them for years they are good employees.

Whatever the reason, pay attention to this one to develop. They may settle with her. She is only asking for $25,000 and the bad publicity may cost AARP more than that.

"Cat's Paw": Avoid Being the HR Dupe

I learned a new phrase today so I thought I would teach it to you. I was reading an article on a case on discrimination that was headed to the U. S. Supreme Court before it got settled at the last minute. It involved a case of discrimination in which a Hispanic supervisor was biased against a black employee. The supervisor was made life difficult for the employee in a number of ways, including assigning him to weekend overtime work. The employee refused in one case. The supervisor took his case to the regional HR manager (who worked in Arizona, not New Mexico where the supervisor and employee were located). The HR manager told the supervisor to tell the employee that refusal to work would be grounds for termination. The employee called in sick instead of coming to work and was fired.

The employee filed a discrimination claim. Initially the courts dismissed the claim, but an appeals court reversed saying that HR was the decision maker, but it was based upon information provided by the supervisor and what was given was not the complete story. It was headed to the Supreme Court, but the company settled before it got there, paying out $250,000 and committing to alot of training.

In the description of the case they used the term "cat's paw." I had no idea what this meant so I headed to the Internet. Basically it is a term that comes from a fable in which a monkey convinces a cat to reach into a fire to retreive roasting chestnuts. The cat does so, gets its paw singed and the monkey gets all the chestnuts. The cat was duped into being the tool of the monkey, keeping the monkey from getting burned.

In this particular case the HR manager was the cat's paw of the supervisor. The supervisor, by not giving all the information, duped the HR manager into making a decision that the supervisor did not want to make or could not make, but wanted that result. The HR manager, by being remote did not know of previous bias against the employee or favoritism for other employees. The HR manager did not do his/her homework in the case.

The result of this shows that the company can still be held liable for decisions made with good intentions by unknowing parties if the complete story is not known. This means that HR managers need to thoroughly investigate before making recommendations on terminations, etc. As a consultant I occassionally get calls asking "can we fire this person?" I find out about the facts of the case, but my line of questioning always comes back to "Is there any reason to suspect that there may be some bias in this situation?" I ask that question several times, several ways.

So avoid being a "cat's paw" in situations. Don't allow yourself to be duped into making a decision to justify someone else's bias.