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Greg Naylor, Editor
Whitfield & Eddy, P.L.C.
Vol. 14, No. 7
November 2007
AGE DISCRIMINATION
'Young, energetic' comments fail to support age-bias claim
. . . Eighth Circuit rejects age charges despite evidence of age-related comments by company managers . . .
The Age Discrimination in Employment Act (ADEA) prohibits intentional age discrimination against employees 40 years of age and older. If a company's managers have made age-related comments tending to infer a desire for younger employees, is that
enough evidence to support an age discrimination claim filed by a 58-year-old terminated employee who was replaced by someone 28 years younger? Read on to learn how the Eighth Circuit recently handled the claim.
'Decentralization' leads to termination
Target Corporation hired Richard "Tom" Carraher as a recruiter in June 2003. He was 56 years old when he became the executive recruiter for the company's southern region, which stretched from Texas to Florida. He was assigned to work out of
Minneapolis, Minnesota.
In August 2004, Target's VP of HR decided to decentralize the company's executive recruiting department by moving recruiters to their assigned regions. As a result, Carraher's immediate supervisor, Kim Strong, asked him to relocate to Texas. He
informed Strong that he would prefer to remain in Minneapolis and went looking for another job within the corporation. After he was unsuccessful in finding another job, the two met again in January 2005 to discuss his position.
According to Carraher, Strong told him that he had a single option: termination with severance. Strong later claimed that she provided him with three options, including relocation to Texas and a different type of recruiting position in Minneapolis.
Regardless, he sent a letter to the VP of HR claiming that his impending termination was motivated by age discrimination. He then failed to return to work, and Target ultimately terminated him in early March.
Managers' comments trigger age-bias claim
Carraher alleged in his federal court lawsuit that Target's corporate culture fostered a preference for younger employees. After the district court dismissed his claim at the company's request, he asked the Eighth Circuit to reinstate his case for
trial because (1) several managers made age-related comments; (2) he was replaced by a substantially younger employee; (3) the average age of Target's recruiters declined after his termination, and the company increased its recruiting efforts for
young people on college campuses; and (4) the company deviated from its own policies by not investigating his age-related claim.
According to Carraher, the following age-related statements showed Target's bias:
- a senior diversity representative's comment in 2004 that employees who fit the "Target Brand" were persons who were "young and energetic";
- an HR manager's statement in April 2004 that "we cannot discriminate on the basis of age but we
want someone with fire in the belly. Older, more experienced candidates do not have the fire in the belly"; and
- a September 2004 statement by a district manager who, after interviewing a candidate in his mid-50s, told Carraher: "I felt like I
was interviewing my dad. It felt bad. He should be retired."
On appeal, Carraher acknowledged that the individuals who made the statements weren't directly responsible for the termination decision. Still, he claimed that the age comments were
indicative of a corporate culture that was age- biased and ultimately led to his firing.
Eighth Circuit's decision
The Eighth Circuit wasn't impressed. The court noted that Carraher couldn't simply rely on the managers' "stray remarks" as evidence of age discrimination unless he could draw some "causal" connection between the statements and the ultimate decision
to fire him. Among the factors that the court considered important were:
- whether the statements were made by managers who either took part in or influenced the decision to terminate Carraher; and
- how much of a time gap existed between when the statements were made and when he was fired.
In analyzing
the record, the court found that all three statements were made by nondecisionmakers who really had no relationship to Carraher's termination, even though they were responsible for recruiting Target employees. Also, the court noted that the
statements were "generalized statements that do not tend to establish that age was the basis for [his] termination." Finally, all of the comments were made more than five months before the termination ― too distant to be considered proof of his
age claim.
While acknowledging that Carraher was replaced by an employee 28 years younger, the Eighth Circuit observed that that evidence, by itself, was of "insufficient probative value to persuade a reasonable jury that [he] was discriminated against."
Carraher also pointed to a small decline in Target recruiters' average age and the company's increased emphasis on college recruiting. The court, however, found that those facts also failed to show that age was a determinative (or "but for") factor
in his discharge. The recruiters' average age after his discharge went down from 38.5 years to 35.09 years based on the ages of only 33 recruiters. According to the court, his statistical data wasn't significant, and the sample was too small to be
persuasive.
Also, Target had hired two recruiters over 40 years of age in 2005, and Carraher was hired when he was 56. As a result, the Eighth Circuit upheld the district court's dismissal of his age claim. Carraher v. Target Corporation, 207 U.S. App. LEXIS
22325 (8th Cir., 2007).
Employment tip
This decision underscores the proof requirement that distinguishes age claims from other discrimination claims based on religion, gender, race, color, or national origin. In age cases, the person filing the charge must establish that age was a
"determinative" factor in the adverse employment decision. In contrast, other discrimination cases require proof that protected-class standing was a factor in the adverse decision, albeit a motivating factor.
The distinction between age as a "determinative" factor and other protected classes as "a" factor can be significant, as it was in Carraher's case. The Eighth Circuit emphasized that Carraher couldn't persuade a reasonable jury that his age was a
determinative factor in his discharge, even though he offered some age-related evidence in support of his claim.
Despite the different words used by the courts to discuss the proof needed to show discrimination, from a practical standpoint, you must always do everything within your power to ensure that protected-class standing ― whether it is age or
another characteristic ― is never considered when you're making an employment decision.
Supervisory comments that infer an age bias ― e.g., "fire in the belly" and "young and energetic" ― will inevitably create litigation problems, even if the ultimate employment decision doesn't rest on age. Train your management staff to
avoid expressing opinions that may infer bias. Keep your employment decisions objective and fair. Loose lips can lead to expensive employment litigation.
Copyright 2007 M. Lee Smith Publishers LLC
IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual
legal problems should be addressed to the attorney of your choice.
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