Over the weekend, I asked my colleague, Chris Engler, to think of any employment law lessons that could be divined from the victories of the UConn Men’s Basketball team. He reminds us in the post below that preparation still matters. Of course, this isn’t the first time this blog has written about the UConn Huskies (see 2009 and 2011). Will 2014 bring another championship?
This past weekend, the UConn men’s hoops team reminded us that hard work and thorough preparation can prevail in a contest that looks tough to win on paper. A recent federal court decision shows that those same qualities serve Connecticut employers well too.
The alleged facts are told in the court’s decision: Martin Donovan, a longtime Yale University administrator, was terminated back in 2010 after an investigation revealed numerous problems with his management style. Donovan sued for age discrimination based on three comments by his supervisors.
The background facts are important. A few months before his termination, when Donovan was 61 years old, his supervisor asked him about rumors that he was planning to retire. When Donovan vehemently denied the rumors, the supervisor expressed relief that Donovan would continue working.
Previously, another supervisor had commented on other employees’ ages in Donovan’s presence. The supervisor first conveyed his satisfaction that an accountant left and was replaced by “someone younger.” Later, the supervisor mentioned that a researcher was too old for his research to be valid.
Despite these comments, the federal court for the District of Connecticut concluded that they weren’t enough to show age discrimination. In doing so, the court provided some insight into how an employer can avoid an age discrimination claim. (Readers, get out your notepads.)
First, the court highlighted the thoroughness of the investigation into Donovan’s managerial problems. The investigators were theoretically impartial, being from another Yale unit, and they interviewed and observed nearly every employee in the department. This convinced the court that these problems weren’t just a pretext.
That brings us to Takeaway #1: Thoroughly investigate and document performance issues, such as Donovan’s managerial problems, as soon as they arise. Yale’s comprehensive investigation was its saving grace in this case.
On a related note, here’s Takeaway #1a: An employer probably has more pressure to conduct a solid investigation if there was a recent incident involving an employee’s protected status. To try to show a pretext, Donovan emphasized that his termination came mere months after the retirement conversation. While the court here wasn’t convinced, another court viewing somewhat different facts might be. Again, consistent and accurate documentation of issues should avoid this dilemma.
Second, the court pointed out that the first supervisor was relieved that Donovan would not be retiring. The supervisor’s reaction indicated the absence of a discriminatory mindset.
Takeaway #2: Conversations about sensitive topics like retirement plans (and, presumably, issues like maternity, disability, or other leaves) aren’t forbidden under anti-discrimination laws. However, the employer should conduct these conversations professionally and only inquire as far as necessary for business needs. Dan covered this in a prior post too.
Finally, the court downplayed the significance of the other supervisor’s comments, “even if they betray an ageist disposition.” The court characterized them as “stray remarks” that don’t, by themselves, suggest discrimination, primarily because they referred to people other than Donovan.
Takeaway #3 is not that supervisors have free rein to “betray an ageist disposition.” Instead, the point is that employers should educate and train their supervisors to avoid making these stray remarks altogether.
Regardless of how March Madness plays out for UConn, it’s refreshing to know that good old-fashioned preparation can still prevail – on or off (or in) the court.