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Company wanting digital natives = age discrimination?

Can seeking “digital natives” in job ad get me sued?

Stay away from the Three Os: Orientals, Old People and Ovaries

Florida HR professionals and business owners should be mindful that the Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating against an employee who is at least 40 years of age because of that employee’s age. To succeed at trial on an age-discrimination claim under the ADEA, the employee must prove that age was the “but-for” cause of the adverse employment decision giving rise to her complaint.

Treasure Coast businesses should recall that last year was the 50th anniversary of the ADEA, so age discrimination is a hot topic right now.

If you need any assistance in handling age discrimination matters or issues dealing with firing older workers concerning your Florida business, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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After an employee was fired, she sued her employer, claiming age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and retaliation. The employee claimed that she was fired, along with other older workers, to make room for new Millennial hires. The employer denied these allegations and provided a business reason for her termination: violation of a company policy.

Is your Florida company hiring Millennials? You may get sued for age discrimination!

Thus, the Appellate Court reasoned that the employee alleged facts to establish that the company:

fabricated a reason for suspending and terminating her,
fired other older workers for trivial reasons,
prioritized hiring younger workers, and
was in the process of replacing its older workers with younger workers.

The Court explained that taken in isolation, “these facts would perhaps be too vague and non-specific to support a claim of age discrimination.” However, because this was not a trial, but rather a Motion to Dismiss, the Court must accept as true that the employee was fired for a policy violation she did not commit. Therefore, the Court stated, “these allegations are enough to make out a plausible claim that the stated reasons for her termination were pretextual and that her age was the cause of her termination…This was all that was required at the pleading stage.”

Based on her knowledge of the company’s workforce as an employee of three decades, she alleged that the company could not hire large numbers of younger workers without eliminating many older workers to make room for them. The employee then claimed that, based on her own observations and observations by coworkers she knew, the company had a policy of firing older workers over trivial or non-existent infractions of company rules while refusing to discipline younger workers for the same infractions.

She further alleged that she and some of her coworkers observed that millennials comprised the vast majority of newly hired company employees.

The employer filed a Motion to Dismiss the lawsuit, and the federal District Court agreed with the company, but the employee appealed to the Eleventh Circuit Court of Appeals (controlling in Florida). On Appeal, the Court agreed to dismiss the retaliation claim, but disagreed with the employer, and vacated the dismissal of the employee’s discrimination claim. Buchanan v. Delta Air Lines, Inc., Case # 17-13452 (11th Cir. April 9, 2018).

On appeal, the Court focused on the employee’s argument that the reason the company gave for her termination was pretextual because she had an excellent work record, did not actually violate the company policies for which she was investigated and that the company had no evidence that she violated any policies.

The employee further alleged that the company’s CEO publicly announced on multiple occasions that the company planned a push to hire younger workers such that half of the company’s workforce would be comprised of millennials by 2020.