Supervisor’s remark leads to age bias claim

A recent Michigan case shows that even when an employee may have been fired for legitimate performance-based reasons, a lone stray remark suggesting improper motives could land you in court.

In that case, Kenneth Lowe, a 60-year-old manager at a molding plant, was fired after 40 years with his company, supposedly for performance and behavior reasons and because his position was no longer necessary.

According to the employer, a new general manager at the plant quickly noticed that Lowe had limited understanding of the newer equipment and relied heavily on his subordinates. After the company transferred the subordinates from Lowe’s department, he was left managing only part of the building and doing maintenance.

Two years later, an HR manager noticed that Lowe had only a few janitors reporting to him, apparently calling into question whether his position was needed. She also claimed she received complaints that Lowe had been used vulgar language and had made sexually charged comments in the workplace. She documented six alleged incidents and recommended Lowe be terminated following the final incident, which involved a lewd gesture and inappropriate comment he allegedly made in a meeting.

During the termination meeting, Lowe asked why he was being fired and the general manager allegedly replied that he was “getting up in years,” was “at retirement age” and that he should “go one way” while the company was “going the other.”

Lowe sued the employer in federal district court claiming age discrimination under Michigan’s civil rights act. The judge ruled in the employer’s favor, concluding that even if the general manager made the remarks in question, they were “too attenuated” to show direct evidence of discrimination.

But a federal appeals court reversed, finding that such a remark did, in fact, constitute direct evidence of discrimination as a “literal statement” that his age was the actual reason he was terminated. The court also found that the employer failed to show it would have fired him regardless of any age-based animus.

Now Lowe has a chance to bring his case to a jury, and employers have yet another case study that shows how useful it is to have an attorney review termination policies and help train managers on conducting terminations in a non-discriminatory manner.

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