Grumpy old men don't have more leeway to be fired
Published 04/01/05

An ill-tempered older worker does not have more job protection than an ill-tempered younger worker.

Under the Age Discrimination and Employment Act ("ADEA"), workers age 40 and older, including those of average and below average ability or attitude, are protected from being treated more harshly than they would be if they were younger. The ADEA does not require an employer to tolerate an ill-tempered older worker when the employer would not tolerate that same attitude from a younger worker.

This is illustrated in the case from the Federal Seventh Circuit Court of Appeals of Koski v. Standex Int'l. Corp . decided on October 15, 2002. In that case, a 56-year old worker, who was employed by Standex for 28 years, sued under the ADEA after being fired for unsatisfactory performance and failing to communicate with customers and co-workers.

When Koski joined the company in 1970 as an engineer, he received several promotions and positive performance reviews for the next 20 years. In 1991, assessments became mixed as several supervisors reported he was moody, had a negative attitude, and was not a team player. In 1993, he was demoted from management, and in 1995 a new General Manager warned Koski that his job was in jeopardy because of his inability to communicate with colleagues. Koski's work improved over the next two years and he was given merit raises.

However, in 1998, the General Manager again expressed concern about his performance as well as his negative attitude toward his superiors. Koski was fired in September 1998 for his unsatisfactory performance and failing to communicate with customers and co-workers. While Koski claimed the reasons for the discharge were a pretext for age discrimination, the appeals court agreed with the district court that there was no merit in that argument. The Court stated that the company's reasons for firing Koski were his underlying inability to communicate well.

While the ADEA does protect all workers 40 years or old from being treated more harshly than younger workers, older workers do not have more job protection for their poor attitude. When a worker's performance or communication skills begin to gradually deteriorate, it is prudent for the employer to note this in written evaluations. If the worker's attitude change has not amounted to gross insubordination, the employer generally should provide the worker an opportunity to make a positive attitude adjustment before firing him. Not only does this give the worker a wake-up call, but if a claim is later filed against the employer, there is clear documentation that the worker was given a chance to change, but still chose a negative attitude.

Employers should have written warnings signed by workers to document the worker's attitude change and those warnings should also provide an opportunity for the worker to put his response/dispute of the warning, in writing. The signed written warning, with any response, should be put in the worker's personnel file as a record that the worker did receive notice of management's concerns.

An older worker would be ill advised to believe he had a good age discrimination case solely because he had worked for the company for many years with prior praise and only now are being criticized for a bad attitude. People change over the years; sometimes for the better and sometimes for the worse and judges understand this reality of life.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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