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Sigh of Relief for Employers in Sixth Circuit: Age Discrimination Tougher to Prove in RIF Context

The United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) recently ruled that an older worker, discharged in a reduction in force (“RIF”), must clear an additional hurdle to bring a claim under the Age Discrimination in Employment Act (“ADEA”).

Generally, to establish an ADEA claim (which protects workers age 40 and over), a plaintiff must show (1) he was a member of the protected class; (2) he sustained an adverse employment action; (3) he was qualified for his position; and (4) he was replaced by someone outside of the protected class or treated differently than similarly situated employees outside of the protected class.  However, in Johnson v. Franklin Farmers Coop., the Sixth Circuit ruled that the 64-year-old plaintiff had to go one more step since he was discharged as part of a RIF.  That extra step is presenting additional evidence indicating the employer singled him out for discharge based on his age.  The court explained “the purpose of the additional evidence requirement is to ensure, in reduction in force cases, that the plaintiff has presented evidence to show that there is a chance the reduction in force is not the reason for the termination.” In the Johnson case, the plaintiff failed to present such additional evidence that he was singled out and, therefore, lost his claim.

While the Sixth Circuit’s interpretation of the law can help employers defend an ADEA case, employers are always better off not having to defend claims in the first place.  When conducting a RIF, consult labor and employment counsel or strong HR support to minimize the risk of claims.  If you are offering severance, you can also minimize the risk of litigation by having employees sign a release covering ADEA and all other employment related claims.  Keep in mind, there are specific requirements that must be met for such a release to be enforceable, and you should consult competent counsel for this option.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.