Older man picking up box off desk to leave office

Can Your Employer Terminate You Because of the Pandemic?

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You received the proverbial “pink slip” with the explanation that the pandemic has caused financial losses. Several others at your level, but much younger, are retained. Can your employer do that legally?

Maybe, maybe not. If the real reason is that your employer prefers to retain the younger employees and get rid of the older ones, using the pandemic as the supposed “reason,” there could be a violation of the ADEA, the Age Discrimination in Employment Act.  Gardner Employment Law has handled many age discrimination cases and can advise you on your termination.

The Legal Meaning of Discrimination

To “discriminate” literally means to make a distinction, to treat differently. The legal meaning is much more. The ADEA protects employees 40 years and older from discrimination at work on the basis of age. Employees in this age group are part of a “protected class.”  There are other protected classes, such as race, sex, national origin, religion, and disability.

One word, “because,” is the key to the legal analysis. “Joe was terminated because . . .”  Was it because he is 59, or because of the pandemic, as the company claims? If you were on the jury and saw Joe’s personnel records showing that he was an excellent employee with high productivity but the younger employees retained are much less qualified with lower production numbers, what would your answer be?

How Does an Employee Prove Discrimination?

In my 30+ years, I have never seen a company state that an employee was fired because he or she was too old. In fact, discriminatory actions at work often are covered up. So how does an employee prove discrimination? Typically, it is not easy.

Direct evidence of discrimination hardly ever exists. It is rare to discover evidence that being a member of a “protected class” was the actual reason for the adverse employment action. I have had only a handful of cases where the manager decided specifically to get rid of the “old people” and retain “younger” employees. In these cases, someone heard the decision-maker make a statement illustrating bias against older workers.

In one of my cases, a high-level manager who was working internationally was forced to retire, although there was an opening at his level in China. When he mentioned this opening to his supervisor he was told, “We don’t want old people in China.”  The jury returned a substantial verdict in the manager’s favor.

More often, the employee must revert to circumstantial evidence for proof, such as showing that the real reason is not the one that management states. Years ago, in Texas Dept. of Community Affairs v. Burdine, the Supreme Court held that an employee can prove intentional discrimination “by showing that the employer’s proffered explanation is unworthy of credence.” This is called “pretexual” evidence, that the employer’s reason is not believable. Pretext can be shown in many ways, such as retaining less qualified employees, bogus write-ups immediately before the termination, a reason that is contrary to the facts of what happened, the decision violates the company’s own policies, the reason makes no sense, or the reason is just not true.

In the issue at hand regarding the pandemic, some companies are using the coronavirus to get rid of employees, especially older employees, under the guise of the “pandemic.” However, everyone is subject to the consequences of the pandemic, which moots that as a reason. The real question is why would an employer retain younger less qualified employees who are poor producers and terminate an older stellar employee who generates substantial revenue. That does not make good business sense. A jury could find that the real reason was discrimination.

Gather the Facts

If you have a “gut feeling” that the reason for your termination does not add up, then assemble the facts that logically show that the reason given is not the real reason for the termination. Next call an expert discrimination lawyer to analyze your situation. There are short deadlines in the law, so you cannot waste time.

If you need help, Gardner Employment Law can analyze your situation and advise you on what action to take. Give us a call.

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