Dive Brief:

• An Abbott Laboratories employee should get a second chance at his age discrimination suit, the 9th U.S. Circuit Court of Appeals held Oct. 20, noting that, among other things, an executive said she was told to "manage out" older workers (Pineda v. Abbott Laboratories, Inc., No. 19-55019 (9th Cir., Oct. 20, 2020)).
• A lower court incorrectly granted summary judgment on the claim, the 9th Circuit said. It gave "great weight" to subjective, disputed performance reviews and failed to take into account other conflicting evidence, the appeals court said.
• The court also noted that an executive in the organization said she was instructed to "manage out" more senior, higher salaried employees who were usually older by inventing performance problems and assigning unattainable goals. The conflicting accounts created a credibility question best suited for trial, the court said. "She later, in another declaration, retracted one paragraph of the declaration and made statements qualifying other parts of her original declaration," the court said, but her and other conflicting accounts "create a credibility question regarding the weight to be accorded the contradictory evidence they provided, one best suited for trial."

Dive Insight:

When planning layoffs or reorganizations — especially such moves that affect those making the most money who tend to be more senior — employers should proceed with caution, Weinberg, Wheeler, Hudgins, Gunn and Dial Partner Matt Gomes previously told HR Dive.

That's because the Age Discrimination in Employment Act (ADEA) forbids discrimination on the basis of age against employees and applicants who are 40 years old or older and has a "disparate impact" provision. This means, according to the U.S. Equal Employment Opportunity Commission (EEOC), the law prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers, unless the employer can show that the practice is based on a reasonable factor other than age.

And while laws forbidding age discrimination have been around for decades, age discrimination remains a problem in the workplace. More than a fifth of employees over age 40 in a Hiscox Ageism in the Workplace Study said they had experienced age discrimination in the workplace. AARP researchers have found that one of the areas in which bias occurs is in terminations — older workers are targeted for dismissals because of false perceptions about their contributions and pay, the organization said.

Although younger workers often are perceived as having superior technological skills and comfort with technology, mature workers bring with them well-developed soft skills that translate to strong work production in remote environments, Carla Bevins, assistant teaching professor of business communications at Carnegie Mellon University's Tepper School of Business, previously told HR Dive. Bevins said that when mature workers are able to effectively use technology in their work, their well-developed soft skills translate to strong work production in online environments.

Apart from thoroughly documenting adverse employment decisions to provide a defense if matters go to court, EEOC also has suggested that HR train managers and all employees on equal employment opportunity laws and implement a strong EEO policy that is embraced at the top of the organization.