- Even though a former account executive for Forney Industries, Inc. made a prima facie showing of age discrimination, he failed to show that his employer's reasons for firing him were pretext, the 11th U.S. Circuit Court of Appeals held (Reed v. Forney Industries, Inc., No. 19-10901 (11th Cir. Jan. 28, 2020).
- Richard C. Reed, Jr., had mixed performance reviews and, when the employer asked the 46-year-old to submit an overdue report, he responded in a manner the company viewed as insubordinate. It fired him, citing a "lack of responsiveness to management requests for his work schedule," "insubordination," and his "continued decline in achieving sales goals and lack of detailed plans for improvement." It then replaced him with an employee seven years younger.
- Reed sued, alleging age discrimination and a district court granted summary judgment for the employer. On appeal, the 11th Circuit noted that Reed had established a prima facie case of age discrimination, but that a reasonable fact finder would not find Forney’s reasons for firing Reed — poor performance and insubordination — pretextual, the 11th Cir. said.
The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees 40 and older because of age. But, as the Reed ruling demonstrates, employers have a strong defense when they can show a legitimate, nondiscriminatory reason for an adverse employment action.
Still, ageism at work is widespread and viewed as the "last acceptable bias," according to a recent investigation by AARP. Researchers found that bias often arises in terminations; older workers are targeted for dismissals because of false perceptions about their contributions and pay, the organization said. Other studies support AARP’s findings: More than 20% of employees older than 40 in the 2019 Hiscox Ageism in the Workplace Study said they experienced age discrimination in the workplace; those around 51 years of age were reportedly the biggest targets. Hiscox recommended that employers provide workers with training on age bias, look out for harassment and exclusion from hiring or advancement, and respond immediately to bias complaints.
Age bias has not escaped the notice of Capitol Hill lawmakers and the U.S. Equal Employment Opportunity Commission. The agency has vowed to investigate age discrimination complaints and vigorously pursue employers that violate the ADEA. The U.S. House of Representatives also passed the Protecting Older Workers Against Age Discrimination Act Jan. 16, which would expand the law's protections; it is awaiting action in the Senate.
Because managers and front-line supervisors are a leading cause of bias claims, experts suggest they be provided with regular training on applicable federal, state and local laws teaching them how to prevent bias, harassment, discrimination and retaliation claims. HR also can help by developing and implementing policies that support diversity and inclusion.