Evidence Of Harsh Discipline Against More Mature Employees Can Be Evidence Of Pretext In An Age Discrimination Case
When an employer inconsistently imposes discipline and does not follow its own discipline procedures and policies, it leaves room for employees to make claims of discriminatory animus. This was recently highlighted in a recent U.S. Ninth Circuit Court of Appeals decision, Earl v. Nielsen Media Research, Inc. The Court held that an employee with a history of performance issues produced enough evidence to present her age discrimination case to a jury.
Christine Earl, age 59, worked as a recruiter for Nielsen Media Research for about 12 years. Nielsen measures television program audiences and provides the results to advertisers and media outlets. Earl’s job was to recruit households and obtain their consent to install Nielsen devices relaying their viewing habits back to Nielsen. In August 2005 and January 2006, she received verbal warnings for violating a Company policy by leaving a gift at an unoccupied household. In February 2006, Earl violated a policy requiring her to keep a company map that resulted in her being placed on a Developmental Improvement Plan (DIP). A DIP is an informal, non-disciplinary tool that Nielsen uses to notify an employee of below standard performance. Earl never received a Performance Improvement Plan (PIP), however, which is part of the Company’s disciplinary process. Earl’s performance evaluation for 2005- 2006 noted her DIP, but also commended her strong ability in signing new homes and commended her good production. In October 2006, she obtained the consent of a household but mistakenly wrote down the incorrect address.
In January 2007, Earl was terminated for these performance issues. Nielsen replaced her with a much younger recruiter, and Earl sued the Company for age discrimination. The trial court granted summary judgment, but the Ninth Circuit reversed. Finding that Earl had provided enough evidence to show that the Company’s reasons for terminating her may be pretextual. If a plaintiff can establish a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. The burden then shifts back to the plaintiff to establish with specific and substantial facts that the proffered reason is pretextual.
The Ninth Circuit noted that Earl offered evidence that three employees between the ages of 37 and 42 had violated numerous policies relating to the proper collection and verification of household information but they were not terminated. The Court also found immaterial that two of the comparison employees were over the age of 40. The proper inquiry is whether the other recruiters were significantly younger than Earl, and here they were. Finally, Earl presented evidence that the company had deviated from its regular procedure when it terminated Earl without first placing her on a PIP, as it did with the other employees. Even if the company did not have an official policy of first placing employees on PIPs, there was evidence that Nielsen had a practice of applying a more forgiving disciplinary process to younger employees who were similarly situated to Earl.
The lesson to take away from this case is that an employer can better avoid claims of age discrimination if discipline is consistently applied, regardless of age. If an employee is treated differently than others, he or she may present this as evidence of discriminatory animus and the reason for the differential treatment. Employers should train supervisors to follow and impose discipline policies and procedures in a consistent manner to minimize the risk of being accused of discrimination.
HOLIDAYS
A gap that existed in California law concerning continuation of health insurance coverage during maternity leave has now been filled by the California legislature. Effective January 1, 2012, health insurers will be required to cover maternity benefits and employers who had been required to continue health insurance during a maternity leave covered by the Family and Medical Leave Act (FMLA) will now be required to continue that coverage for the full four month maternity leave of absence permitted by the California Pregnancy Disability Act.
The rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers. Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.” But now public employers have to contend with a different political landscape, a different level of emotional involvement by employees, and entirely new political causes. One such cause is the Tea Party movement, one of whose central tenets is the need for a sharp decrease in government spending and in the overall role of public agencies themselves. Second, on a different axis, the new OCCUPY movement attacks the private sector’s supposed excessive role in government. This is at least the purpose as articulated by some of the movement’s endorsers, such as film maker Michael Moore, former New York Times writer Christopher Hedges (who quotes literary figures like Albert Camus and W.B. Yeats in support of his economic arguments), and even Harvard law professor Lawrence Lessig (in his new book “Republic, Lost”). Significantly, although the OCCUPY target for reform is the private sector, it is clear the public sector has had to bear the brunt of its physical effects. The tents and protests are typically on public property, with City police forces having to dedicate substantial resources to watching out for and responding to any disturbances, and in a few cases to taking even more drastic action.
