“I bargained with Life for a penny,
And Life would pay no more,
However I begged at evening
When I counted my scanty store;
For Life is just an employer,
He gives you what you ask,
But once you have set the wages,
Why, you must bear the task.
I worked for a menial’s hire,
Only to learn, dismayed,
That any wage I had asked of Life,
Life would have paid.”
– Jessie B. Rittenhouse
Author’s Note: There is an acronym thrown around on the legal advice subreddit that has the unfortunate name IANAL, which stands for “I am not a lawyer.” That acronym applies here. Nothing I say in these essays should be considered as anything other than the speculations of a layman.
~ Zach Richardson, Director of Publication, United States Transhumanist Party, December 2021
The “Larry” character from this series’ introductory essay is based on a personal anecdotal work experience. Larry’s function in that organization was “order entry”. He was a steady worker and could reliably enter 20-25 orders per hour into our management system. Larry was not quite as fast as Roger, but he could keep up nicely and did his share… at first. Each year passed, and he got a little bit slower at clicking around, at keeping track of the volume of data needed for each entry and at maintaining accuracy.
Roger, on the other hand, was a speed demon. 40 orders per hour was not uncommon, and he seemed laser-focused at work. He was the better of the two, and everyone knew it. Both he and Larry had been with the company since the beginning.
COVID-19 rolled around, and our industry suffered a massive drop in revenue; our clients were manufacturing plants who were all temporarily ceasing operations. It was time for layoffs, and Larry was let go due to lack of performance. Everyone knew it was because he was getting slow and forgetful. Everyone knew it was because he was too old.
The company was lucky because they had a good standard by which they could measure the two on, and clearly demonstrate a decline in performance. They had metrics on employee workflow going back several years.
The fact that these metrics had been around since the beginning and were unchanging was key in the company’s realization that it was legally defensible to lay off Larry.
They could show a decline in performance and say:
“Age had nothing to do with it! We don’t know why he was getting worse at his job, but he just was, and our metrics showed it, so we were unfortunately forced to let him go.”
Metrics, metrics, metrics.
The key defense against any claim of ageism was enabled this last decade by how ridiculously easy it has become to collect and store data. Metrics can be set as targets that are just out of reach or are only being met by 70% of your workforce, and then managers can fire those they don’t like, while retaining those they do.
Consider speed limits on our highways; probably half of all drivers break the limits, but only a handful of them are pulled over and ticketed.
Metrics allowed large companies to fire disparately since the mid-2000s, and the ease of data collection via company-owned devices is enabling small companies to do the same.
This is not good, but it is also not bad. It is not fair, but it is also not unfair. It is just business.
So, how does a company proceed with removing an unwanted elderly worker without getting tied up in a lawsuit?
Well, there’s an art to it, and in the next few essays I’ll explain a few of the key concrete particulars by looking at successfully and unsuccessfully litigated examples in case law.
** I am not a lawyer, and nothing in this series of essays should be taken as legal advice**
Zach Richardson is Director of Publication for the U.S. Transhumanist Party.