Dive Brief:

• A reorganization was a legitimate, non-discriminatory reason to terminate a woman's employment, the 6th U.S. Circuit Court of Appeals ruled (Drews v. Berrien County, Michigan, No. 20-1267 (6th Cir., Jan. 15, 2021)).
• A payroll specialist sued her former employer after she was let go after a lengthy career with the Berrien County Road Commission in Michigan. She alleged age discrimination under state and federal law. The county, however, said she was dismissed because of a reorganization after Berrien County absorbed the commission.
• A district court ruled for the employer, and the appeals court affirmed. The county said the specialist's responsibilities were transferred to the county's existing HR department. The plaintiff argued, among other things, that the county's reason for eliminating her position was a pretext because the county payroll clerk did not assume all of her responsibilities. The court rejected the argument, noting that most, but not all, of the specialist's responsibilities were taken over by the HR department, and other employees took over the rest of the tasks. The court said it had "repeatedly recognized" that consolidation of duties is a legitimate, nondiscriminatory reason to terminate an employee, even when the person whose employment was terminated had a positive performance record. The plaintiff also argued that her co-workers made several age-related comments that were evidence of pretext. Noting that discriminatory remarks, even by a nondecisionmaker, can serve as evidence of pretext, the court said nothing in the record attributed the offensive comments to the decision to eliminate her job.

Dive Insight:

The federal Age Discrimination in Employment Act forbids discrimination based on age against applicants and employees age 40 and older.

Employers should exercise caution when planning layoffs or carrying out staff reorganizations, legal experts previously told HR Dive. Older employees tend to be more senior and more highly paid, so when business leaders lay off those making the most money, they could be setting the stage for an age discrimination complaint. To defend against such claims in the wake of a reorganization, HR should consider the implications and thoroughly document all negative employment decisions.

While the court in this instance noted that the allegedly ageist claims made by co-workers didn't have an effect on the decision makers, employers should be aware that managers and front-line supervisors are a leading cause of bias claims. A woman who was allegedly called a "little old lady" by her manager, along with multiple other offensive comments, was allowed to proceed with her lawsuit. And a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was also allowed to move forward with her age bias claim.

Experts recommend that supervisors and managers be provided with regular training on the relevant local, state and federal laws and on how to prevent harassment, discrimination and retaliation. HR also can help by developing and implementing policies that support inclusion.