Alleged plan to remove 'old-timers' wasn't enough to keep age suit alive

Dive Brief:

An employer's alleged plan to replace "old-timers" with less expensive "kids out of college" wasn’t enough for an employee's age discrimination suit to survive summary judgment, the 7th U.S. Circuit Court of Appeals ruled (Perry v. State of Illinois Department of Human Services, No. 18-3577 (7th Cir., Feb. 10, 2020)).
The Illinois Department of Human Services fired Keith Perry for alleged improper food stamp use. He sued, alleging, among other things, age discrimination. He offered those comments as evidence but a lower court granted summary judgment for the employer.
On appeal, the 7th Circuit affirmed. Even if the comments reflect age bias, the court said, they weren't enough for the suit to continue. For stray remarks to defeat a motion for summary judgment, they must closely relate in time to the adverse actions, the court said, something that was absent in Perry. The court also said the person who allegedly made the comment was one of multiple decisionmakers in Perry's termination: "No evidence suggests that the Director, who ultimately signed off on Perry’s discharge, based his decision on any bias," the court concluded.

Dive Insight:

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age against applicants and employees age 40 and older.

Despite these and other state and local protections, ageism is widespread at work and viewed as the "last acceptable bias," according to a recent investigation by AARP. Researchers 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.

When planning layoffs or carrying out staff reorganizations, employers should exercise caution, Weinberg, Wheeler, Hudgins, Gunn and Dial Partner Matt Gomes previously told HR Dive in an interview. Older employees tend to be more senior and more highly paid, so when leaders lay off those making the most money, they may be setting themselves up for an age discrimination claim, Gomes said. To defend against bias claims in the wake of a reorganization, HR should consider such implications and document all decisions.

And while the allegations in Perry were deemed stray remarks, the claims highlight an opportunity for HR to implement training. Experts have told HR Dive that front-line managers are a leading cause of employment law violations, and that training can prevent such lawsuits