What are the age discrimination warning signs? There are lots of them, but probably one of the biggest for me is when all of a sudden the worker’s performance just isn’t good enough. It’s been good for years, and the production hasn’t changed in any way, and all of a sudden the worker’s getting mixed messages about their performance, and the indications of how to improve the performance are subjective, rather than objective. You can also, sometimes there are comments that are made inquiring about retirement plans, or asking for fresh ideas, or using other code words for younger workers, like, “New blood,” or, “We need a new way of thinking.” Anytime the word new comes up, that kind of raises my antenna a little bit
That doesn’t mean that an older worker can’t be innovative, can’t be new thinking and that sort of thing, but those are usually code words for, “We would like to have a fresher look to the organization,” is another one which might be code for age discrimination. Many of my clients who end up asserting an age discrimination claim present to me with a performance improvement plan and many times this performance improvement plan kind of comes out of the blue sky. They had not really had any problems, now all of a sudden they have this performance improvement plan. I always look to see how objective are the standards in the plan and how achievable those standards are, those objectives are, in the time frame given.
I’ll give you an example, if a performance improvement plan says that, “John has to improve his attitude,” but doesn’t specify what constitutes a bad attitude, or what would constitute a good attitude. That’s hard to achieve because it’s very, very subjective. On the other criteria, which is objective criteria and giving a specific timeframe, I’ve had clients that are salespeople, for example, and they’re told, “Well, you need to increase your sales by 40% in 30 days.” Well, in some instances that’s a perfectly reasonable, rational directive, “Increase your sales within 30 days.” But if your sales cycle is 60 days or 90 days, it becomes impossible to achieve and we’ve had that frequently.
Another thing is when the performance improvement plan is given a certain deadline or a certain time frame. Maybe the performance improvement plan is to be revisited in 90 days, or six months, and all of a sudden before the expiration of that time period, some adverse employment action happens without anything new arising. That’s an indication that the performance improvement plan was a pretext for age discrimination. There are many age discrimination warning signs. Contact us if you notice any of them to talk to an attorney.
*This is a transcript of the Facebook Live video from 7-5-18 Click here to watch the video.