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Discriminatory Comments Made After Termination Can Be Used As Direct Evidence Of Bias

The Sixth Circuit Court of Appeals — which includes Kentucky, Michigan, Ohio and Tennessee — has just determined that a supervisor’s “age related” comments made after a worker was fired could be considered direct evidence of age-related bias.

Federal law makes age discrimination illegal. Because Title VII does not include age bias, Congress passed a separate law dealing with age discrimination–the Age Discrimination in Employment Act (ADEA) — In order to protect older workers. The ADEA prohibits discrimination against individuals over the age of 40. You are also protected from harassment on the basis of your age as well as retaliation for making complaints of age bias. If you have questions about age bias, or believe that you have been subjected to discrimination as the result of your age, it’s a good idea to consult with an experienced Atlanta age discrimination attorney right away.

In the recent age bias case, Sharp v. Aker Plant Servs. Group, Inc., the court reviewed the age discrimination claims of a 52-year old electrical engineer– Tommy Sharp — who was laid off. According to the lawsuit, the man’s supervisor made comments that Sharp secretly tape-recorded that a co-worker’s younger age – rather than Sharp’s job performance – was the reason why Sharp was let go. The company argued that since the man who made the comment was not the ultimate decisionmaker concerning Sharp’s employment, that this age biased comment couldn’t be used to make the company liable for age discrimination.

However, the court disagreed. Under what’s called a “cat’s paw” theory – the court determined that the company could be held liable for discrimination. The cat’s paw doctrine or theory involves the situation where someone – the discriminator – is in a non-decision-making position, but has the ability to influence another’s position. For example, a supervisor who reviews your work or can comment in your personnel file. If this person provides biased information that the decision maker acts on without performing any independent review, the company may be held liable for the discrimination.

In this the court determined that Hudson’s comments could be considered direct evidence of age discrimination despite the fact that they were made after Sharp had be told he was going to be laid off. The comments also included Hudson telling Sharp that the company’s succession plan was to “bring in younger people, train them, so when the older people leave, … you’ll have younger people…it’s not that your abilities all of a sudden ceased to exist, or got worse, or anything like that, we just, I hate to keep repeating myself, but we’re all of the same age and we’re all going to retire and I had an opportunity to bring the next generation in, so that’s what we decided to do.”

The court noted that these conversations could be used as direct evidence of discrimination, writing: “If there ever was a window into the mind of an employment decision maker, that was it.”

An important part of this decision was that upper management followed Hudson’s employee rankings and termination recommendations without conducting its own independent review or investigation. As a result, the age bias made its way into the negative employment decision and the company could be held liable for age discrimination.

For more information or if you believe that you may have suffered age discrimination at work, please contact the knowledgeable Georgia employment discrimination lawyers at The Buckley Law Firm, LLC for an immediate consultation.

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