Dive Brief:

• A senior project manager was fired for the "classic nondiscriminatory reason of poor performance," not his age, the 5th U.S. Circuit Court of Appeals ruled (Hauser v. Schneider Electric Systems USA, Inc, No. 19-20386 (5th Cir., Aug. 4, 2020)).
• The 62-year-old employee had sued, alleging three inquiries about his retirement plans demonstrated that he was fired because of his age. Schneider Electric, however, showed that it fired him after several customer complaints, an unsuccessful performance improvement plan and an incident in which he made a $460,000 change order without the required approval.
• A district court granted summary judgment for the employer and the 5th Circuit affirmed. Even assuming the employee could establish a prima facie case of discrimination, "there is no evidence that would allow a jury to disbelieve Schneider’s explanation," the court said.

Dive Insight:

Protected activity such as age or race complaints do not insulate employees from separate, evenly-distributed discipline, including termination; but experts previously told HR Dive HR should carefully review plans to discipline an employee who recently engaged in such activity as it can appear to suggest bias or retaliation. Once an employer knows that a worker has engaged in protected activity, it's important that "retaliation red flags" such as increased supervision, highlighting alleged performance issues or increased work standards or expectations be avoided, they said.

When employers have a legitimate, non-discriminatory and well-documented reason for taking an adverse employment action against a worker, they may have a strong defense if the aggrieved worker takes them to court, attorney say. In another court case, Lowe's defeated a worker's allegations of age and disability bias because it was able to show legitimate business reasons for the employee's transfer to a new store and investigations into his conduct.

Although the employer prevailed in Hauser, remarks, especially from managers, can provide evidence of discrimination. The 6th Circuit, for example, allowed a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age to proceed with her age bias claim. Periodic training for managers and supervisors on anti-discrimination laws is an often-recommended step in maintaining compliance and avoiding lawsuits.