- Ageist statements made to a Michigan worker during his termination meeting were direct evidence of discrimination, the 6th U.S. Circuit Court of Appeals determined (Lowe v. Walbro LLC., No. 19-2386 (6th Cir., Aug. 26, 2020).
- Kenneth Lowe sued Walbro LLC, his employer of 40 years, alleging age discrimination under state law. Lowe said a new and younger supervisor made dozens of disparaging comments about Lowe’s age for the two years in which he worked for him, including that, after Lowe had received an award recognizing his 40 years of employment, the supervisor loudly said: "Old man, you been here longer than I am old. Aren’t you ready to retire?" Lowe also said that when he was fired, he was told that he was "getting up there in years, you’re at retirement age, you go one way and the company’s going the other." Walbro’s HR manager said, however, the man’s position was eliminated because of diminished responsibilities and complaints about bullying and vulgarity.
- The federal district court granted the employer’s motion for summary judgment. The appeals court reversed, holding that the that the statement made in response to Lowe asking why he was being fired was direct evidence of discrimination.
Statements by supervisors can serve as evidence of discrimination. In this instance, the court concluded that the statement made at Lowe's firing was direct evidence of discrimination. In most disputes involving an employer’s actions, the plaintiff typically does not have direct evidence of discrimination and the court is required to proceed under the burden-shifting framework established in a 1973 court case, McDonnell Douglas v. Green, for evaluating indirect evidence, the appeals court said.
But here, the court said, Lowe had produced direct evidence, requiring the employer to show that it would have reached the same decision without consideration of Lowe’s age. A reasonable jury could conclude that the younger supervisor was biased against Lowe from the beginning based on the supervisor’s repeatedly age-based remarks, the court said.
The court also noted that there was no documentation to back up the employer’s actions. Lowe said there was no documented evidence of deficient performance before his employment was terminated. A reasonable jury could doubt that the supervisor "actually had any serious concerns about Lowe’s job performance" because there was no evidence of Lowe’s allegedly poor performance or that the supervisor had communicated his concerns to Lowe, the court pointed out. The court noted that the supervisor never completed a formal evaluation of Lowe in the two years that he supervised Lowe despite the fact that the employee handbook indicated that such evaluations should take place annually.
Managers and supervisors are a leading cause of employment law violations, legal experts have said. They often say things that lead to lawsuits, so compliance training can help. Discussing the Family and Medical Leave Act at a 2018 conference, Jeff Nowak, a shareholder at Littler, and Matt Morris, VP of FMLASource at ComPsych, said courts are asking employers why managers lack training and, in many instances, awarding double damages.
And when it comes to defending against claims of bias, thorough documentation can help, experts have said.