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Age Discrimination Factored into RIF Selection

Posted on October 3, 2022

A recent court decision found sufficient grounds for a laid-off 54-year-old engineer to claim age discrimination, even though the supervisor who terminated him may not have been aware of persistent ageism among senior managers at the company.

The Massachusetts Appeals Court overturned a summary judgment award entered in favor of the firm.  The Appeals Court found that there was sufficient evidence of age discrimination in the selection of the employee for a reduction in force (RIF) for the case to go to trial.

The employee was terminated in 2017.  He had been employed by the company since 2012 and had been assigned to several important projects.  The company had never had issues with his performance.

Selection for the RIF began in 2016, after a senior vice president in Singapore directed the plaintiff’s manager to cut 22% of his budget, leaving specifics of the reduction to the manager.  The manager then prepared a spreadsheet of factors in the selection process such as pros and cons for each employee, and the impact the loss of individuals would have on projects.

Eight employees, the youngest of whom was the 54-year-old plaintiff, were chosen from the department’s 49 employees.  Of the 49 employees in the department pre-RIF, 38 were over the age of 40, the age at which the law provides protection against age discrimination.

Discovery in the case turned up strong evidence that the company had a strategy to replace older employees with younger employees.  Communications among senior managers used euphemistic language in stating its goals, including orders to “create the space” for more “early career talents.”  An analysis of the Boston office bluntly stated that its workforce was “aging” and had “low and energy and speed.”

The plaintiff’s direct manager was not a party to these discussions about the direction of the business.  But, as the Appeals Court pointed out, there was sufficient evidence of the overall strategy to infer that the manager, perhaps unwittingly, was carrying out the company’s goal to bring in “fresh talent.”   Also, the fact that many of the emails were dated after the RIF in this case did not sway the court from its decision that a jury could find that age was an impermissible factor in the RIF selection process.

In reviewing a summary judgment decision, the court must analyze the facts in a light most favorable to the moving party, in this case the employee.  The Appeals Court found that the ageist remarks of the company’s leadership were “persistent, pervasive, and material” to whether the decision to conduct the RIF was motivated by discriminatory animus. And the court ruled that the issue of whether the manager who selected the plaintiff for the RIF was aware of management’s age bias was a matter for a jury, meaning that the summary judgment ruling for the company could not stand.

Two judges on the Appeals Court dissented from the majority opinion.  The dissenting opinion argued that the record for the case did not support a finding that the plaintiff’s direct manager was involved in, or even aware of, the management discussions with the ageist comments.  The dissenting justices also gave weight to the fact that the employee’s manager had approached other managers about keeping the plaintiff on in another role.  Finally, the dissenters pointed to the fact that many technology companies have found themselves with an aging, male workforce, and the makeup of the affected department was barely changed after the RIF, as one year later 26 of the department’s 36 employees were over the age of 40.

In today’s uncertain economic climate, companies might have to look to reductions in force to meet their financial goals.  This case serves as a cautionary tale for employers who are contemplating downsizing.

If you have questions about managing employee terminations, please reach out to the AIM HR Hotline for AIM members, at 800-470-6277.