3.02.2010

Hiring over 40 doesn't mean they cannot sue for age discrimination

Many employers believe that one of the best defenses in an age discrimination case is the fact that the plaintiff was hired when he or she was over the age of 40. That is, the thought is that employers clearly could not be prejudiced against older employees if they are willing to hire employees already within the protected age class. The recent case of Hidy Motors from the second appellate district in Ohio warns otherwise, however. Subsequent conduct by the employer that shows a discriminatory intent against an individual based upon his or her age will still trump any prior decision to hire that individual when he or she was already within the protected age class, especially when there is evidence of discrimination directed specifically at the older employee. In Hidy Motors, the defendant, a 67-year-old salesman was initially sued for violation of a non-compete agreement. He then counterclaimed for age discrimination and hostile work environment. The court reversed a prior summary judgment rendered in favor of Hidy Motors on the plaintiff’s age discrimination counterclaim.

The Hidy Motors case also helps emphasize the fact that even though a supervisor or manager may be a jerk to everybody at the facility and may use vulgar language when addressing other employees, if that particular manager or supervisor still directs specific comments towards a person and references the person’s age, there may be sufficient evidence to go forward on an age discrimination/hostile work environment claim. Such contradicts the "equal opportunity offender" defense often employed by employers to avoid the harmful effects of an abusive manager.

Hidy Motors provides several good lessons to employers. You should always counsel and/or discipline any managers or supervisors that show aggressive and abusive behavior towards their employees. It does not matter that the behavior is pointed toward all employees if some of the employees fall within a protected class. It just takes one inappropriate comment as part of that abusive behavior to lead to litigation like that in the Hidy Motors case.

Author: Charlie Smith
            614.723.2025
            csmith@ralaw.com

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