Does discrimination -- like life -- begin at 40?

By Raymond Dreyfack -- Plant Engineering, 10/1/1999

Under the Age Discrimination in Employment Act (ADEA), age 40 is the threshold at which protection begins. With this thought in mind, Maintenance Supervisor Frank Gray, 31, formulated his plan to get rid of Electrician Grade I Tom Lucas, 59, and replace him with a younger, more energetic man.

It was no secret in the department that Gray, who was brought in to replace the recently retired department head, wanted to "recharge the operation" with younger employees. But Gray was savvy enough to know that under ADEA you can't simply fire a worker because of his age. Hence the ambitious supervisor developed a plan to rejuvenate the department, make it more productive, and thus advance his career.

His plan was simple enough. Lucas' performance record, though marginal, was within acceptable bounds. Gray suspected if he fired the electrician and replaced him with a younger man he would be subject to charges of age discrimination. But not if his replacement exceeded the ADEA guideline. With this idea in mind, Lucas fired Gray and hired Philip Stone, age 41, in his place. This, he reasoned, should get him off the ADEA hook.

It didn't. Lucas protested the firing, claiming as Gray expected he would, that he was terminated because of his age in violation of the law.

"No way!" Gray countered. "If I were guilty of age discrimination would I have hired a guy over 40 to replace you?"

Lucas refused to settle for this explanation. When he threatened to sue, Gray took his case to his boss.

Question: Can Gray make the dismissal stand up?

Marshall's verdict: Gray's preference for younger employees was not unknown to Plant Engineer Steve Marshall. Reviewing Lucas' employment record, he asked Gray, "It seems obvious to me that you want to get rid of this man because of his age. I don't have to tell you age discrimination is illegal."

"I realize that," Gray replied. "But under ADEA the designated threshold is 40. Since I replaced Lucas with a 41-yr-old applicant, how can I be accused of age discrimination?"

"Simply enough," Marshall said. "I'll concede that replacing Lucas with a man in his 20s or 30s might make the age discrimination more obvious. But from a moral, and perhaps even legal standpoint, given Lucas' acceptable performance record, and with 41 being substantially younger than 59, I suspect any judge worth his salt would see through your motivation. My advice for the future is that if you plan to fire anyone, confine your decision to performance based factors alone."