Dive Brief:

• A Home Depot store manager with a long history of "excellent performance reviews" may have been subject to employment conditions so intolerable that she was "compelled to resign," the 9th U.S. Circuit Court of Appeals concluded, reviving her age bias lawsuit (Wheeler v. Home Depot USA, Inc. No. 17-55560 (9th Cir. Dec. 27, 2019)).
• After working for Home Depot for 20 years and receiving "excellent reviews, raises and bonuses the preceding three years," Janet Wheeler received from her district manager her first disciplinary notice, along with the manager's apologies and explanation that he was being pressured to "ensure store managers were being held accountable." Despite positive store inspections, Wheeler continued to receive discipline notices. She also presented evidence that Home Depot wanted to fire older managers with higher salaries; she complained to HR that she felt targeted.
• Furthermore, a district operations officer sent an email to all store managers saying that Wheeler would get her final write up that week. He shortly thereafter attempted to redact the email, twice. Several days later, a human resources officer met with Wheeler and asked, "off the record, whether she knew anybody who could hire her," the court said. Wheeler resigned at age 52 and later sued, alleging constructive discharge under the California Fair Employment and Housing Act. Home Depot did not respond to request for comment by press time.

Dive Insight:

Ageism at work is widespread 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. Large employers often tolerate age bias because the laws that protect older workers are "decidedly weaker" than those prohibiting other forms of discrimination, it added.

But eliminating age discrimination appears to be a priority for national legislators and the U.S. Equal Employment Opportunity Commission (EEOC). The agency vowed, for example, to investigate ageism complaints and vigorously pursue employers that violate the Age Discrimination in Employment Act. At the same time, lawmakers are set to consider a bill that would reduce barriers to age discrimination suits.

When planning layoffs or reorganizations, employers should proceed with caution, especially when doing so affects those making the most money — who tend to be more senior and more highly paid, Weinberg, Wheeler, Hudgins, Gunn and Dial Partner Matt Gomes previously told HR Dive. To avoid accusations of age discrimination following a reorganization, HR should document all decisions.