Stereotypes lose their power when the world is found to be more complex than the stereotype would suggest. When we learn that individuals do not fit the group stereotype, then it begins to fall apart.
– Ed Koch
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 first case we should survey was a successful suit filed by the EEOC. It is important to note that it was filed by a group of employees, rather than an individual.
Equal Employment Opportunity Commission v. Hutchinson Sealing Systems, Inc.
In this case, Hutchinson dismissed in November/December 2008 three employees (ages 62, 51, and 48) who received the lowest scores on a new updated project engineer rating system they had implemented to assess performance with their engineers. In March 2009 they let go another engineer aged 55.
The problem was that, under the previous rating system, the first group of engineers would not have been laid off, and the March employee would inversely have been the highest-rated project engineer. Those four employees were the oldest employees in the company.
I did some digging on various public records sites and could not find an answer to the question I am most burningly curious about: what were the differences between the two rating systems?
The preponderance of the evidence in this case makes it seem clear this was age-related discrimination.
Hutchinson appeared to be clearing the way for a new round of younger hires, and had changed their system so they had a pretense for letting go their most elderly employees.
Let’s consider this situation, however, from the company’s perspective and assume a similar set of circumstances as that at my previous organization. Imagine that, yes, these employees were the oldest, but aging-related cognitive decline (ARCD) was severely impacting their performance and leading them to just become “bodies in the shop” that were drawing a paycheck but not contributing.
How could this be, when a change to the rating system immediately let go of all of the oldest employees? The previous rating system, after all, had them quite highly rated.
Consider the following possibility:
What if two of the criteria used in the prior assessment system were:
- Number of projects completed
- Time spent working at the company (seniority)
If those were two of the criteria, and they were highly weighted, then an employee who had just been around a very long time and already done a lot could “rest on their laurels” and comfortably enjoy a very high assessment while underperforming on current projects.
Perhaps that exact reason was why Hutchinson decided to change their rating system. Their senior employees were suffering from ARCD and not producing results. They were on the payroll and doing lackluster work but were still assessed very highly.
Imagine that from the company’s start, they tasked some poor manager to implement a rating system to judge performance, and he picked the two above criteria to add just because they were two of the first that came to mind. They used the same old system for a decade without problems – until many of their staff hired at the same time all hit the age where they began suffering from ARCD.
Of course, this is only a possibility. It is equally plausible that a culture of bias and prejudice existed and only the appearance and mannerisms of the employees in question were judged to determine them as less capable, and the new system was created not as an improvement on a poorly-thought-out performance evaluation tool that no longer measured performance, but simply as a device to eliminate those employees they didn’t like.
According to the current law, the employees (note the plural; individuals do not seem to have the same luxury, as in Gross vs. FBL Financial) do not have to prove that they were fired because of their age, the employer has to prove that they did NOT fire them because of their age. In the next essay we’ll examine the case where this important precedent was established.
Zach Richardson is Director of Publication for the U.S. Transhumanist Party.