Reorganization, reduction in force (“RIF”), merger of departments – these are only a few reasons which employers give when firing an employee – and which is frequently alleged to be — and found to be a pretext in violation of Title VII, the ADEA or other anti-discrimination laws.
And also setting a performance bar too high to achieve, intending the employee to fail.
All employment lawyers – both employee and management side – have encountered these scenarios.
A new Age Discrimination in Employment Act (“ADEA”) case filed by the EEOC illustrates the nature of such an alleged pretext. The EEOC claims that Blinded Veterans Association (“BVA”), a non-profit Washington, D.C.-based service provider to blind veterans fired two longstanding employees because of their age. (NB: Another example of the EEOC targeting organizations “whose charter is to help people” or “who should know better.” Readers are hopefully familiar with our many such posts, usually involving the ADA).
One 76-year old employee with 34 years tenure was asked repeatedly when he would retire. When he said that he had no such plans, BVA (according to the EEOC) “announced that it was ‘reclassifying’ certain jobs, including [plaintiff’s], and that he needed to compete for one of the newly-created national field service officer positions if he wanted to remain employed by BVA. In order to compete for one of the newly created jobs, BVA imposed on Martinez arbitrary and unrealistic requirements.”
A “bar too high to reach,” which led inexorably (and intentionally) to failure, is what this alleged “pretext” might be called, if proved true.
The second employee, 70 years’ old with 15 years tenure, was asked repeatedly “When are you going to retire?” and “When are you moving to Florida?”
Refreshing, don’t you think? At least with the second employee the employer was honest in its age animus — thereby providing the employee direct evidence of age discrimination, without the messy and complicated pretext.
An EEOC attorney said it best: “Targeting older workers under the pretext of a reorganization doesn’t fool anyone – it’s clearly age discrimination, and clearly unlawful.”