Age Discrimination and Workplace Violence

smkrause · July 2003

To help increase our sales volume, our company needs to hire a well organized and aggressive sales manager that is also technically proficient in our industry. I have someone I can hire who interviewed for a Sales Engineer position a year and a half ago. However, to afford to hire this individual I must restructure my staff which will result in a current employee being terminated. Our decision of who to terminate is based upon the value or input that the person has provided and overall work performance and output and necessity of the position. The person I am looking to hire, a white male who appears to be in his mid thirties, holds a Bachelor of Science in Electrical Engineering from a state college, who will be working as a National Sales Engineer and Manager. The individual who will be terminated is our Director of Engineering, a 54 year old white male employed by us for 7 years, with no degree in Electrical Engineering. The Director of Engineering believes he has sales expertise and has expressed, in the past, his desire to work in sales. We obliged him and have tried several times to integrate him into the sales area with very poor results and problems, including having a long time customer, who also happens to be a former employer of this individual, request that he not return. Based on past performance, we cannot and will not move him to a position with the amount of responsibility, organizational skills and customer interaction that is required of the National Sales Engineer and Manager. I am not replacing the Director of Engineering nor do I plan to fill that position due it being nonessential and our current economic constraints. The engineering staff I would be left with, 2 people, has proven capable of working without an immediate manager or director and will report directly to the President, who is already very involved in their duties.

I believe that even though this employee has expressed a desire to work in sales, which we have attempted without success, and that I am not replacing his position, Director of Engineering, with this new employee that I am not subjecting myself to an age discrimination claim. Am I correct?

A second question: Over the years the Director of Engineering, the subject of this note, has proven incapable of handling ANY type of constructive criticism, evaluations or disciplinary discussion without becoming extremely defensive and expressing that we are “attacking” him. I am concerned that this termination may cause a negative reaction (verbally or physically). I believe that he has a deep seeded antipathy for a couple of employees who he has said were “out to get him” or “setting him up”, these comments have surfaced after management has attempted a performance or disciplinary discussion. I am concerned about their safety should he have a negative physical reaction. Any suggestions on how I can protect the employees and our company?

Hunter1 · July 2003

Only your potentially soon-to-be former employee could tell you if you're about to be hit with an age discrimination charge. He's in a protected group, and sounds like he might have leanings toward making a charge. Has a manager involved in the decision EVER mentioned the age word to him? Has he ever overheard a conversation at your company during which age was mentioned as being linked to employment? Etc.

Sounds like you have good business reasons to make the change, but that doesn't insulate you from a charge. As far as physical protection, at a minimum, have two individuals present when announcing the change to him, or a member of your security group if you have one. Might look to an attorney to work out a severance agreement with him. Good luck.

smkrause · July 2003

No we have never mentioned age. I am only considering possible scenarios that may evolve from this termination. We are not replacing this individual, however, that will not stop him from making a claim. I am concerned that if I am contacted by the EEOC, will my actions of eliminating this position, even though I hired someone for another position at the same time, give credit to an age discrimination claim. Based upon my knowledge and experience with the EEOC, the company is in a good position.

We have discussed a couple of severence scenarios to help lessen the impact of a termination. Thanks

mwild31 · July 2003

I would like to ask a few of questions:

1. Why did you employ or promote the Director of Engineering without a degree in the first place, if now it might mean the end of his employment with your company without a degree?
2. Why is management allowing the Director to get away with inappropriate behavior ('becoming extremely defensive and expressing that we are 'attacking' him'...) in the first place?
3. If the current Director was not successful in Sales that resulted in a long time customer asking that he not return, why was he not eliminated from the Sales position at that time?

smkrause · July 2003

1) We did not require a degreed individual for this position. Whether he has a degree or not does not affect the postition of Director of Engineering. I t does affect the National Sales Engineer position. That position we are requiring at least a BA.

2) Management or the President of the company has tried numerous ways of approaching him about performance or disciplinary needs. for several years the company had outside conflicts that needed this individuals expertise in the industry and specifically our product. I would have to admit that we used kid gloves with him for fear of a negative reaction which may have affected our outside conflict.

3) He was eliminated from the sales area. He has always been employed as the Director of Engineering, however we allowed him to make sales calls and travel to customer locations in an attempt to increase our sales. He has never been employed as a sales person by us.

mwild31 · July 2003

Are you permanently eliminating the position of Director of Engineering? If you are eliminating this position, who's going to do the jobs/responsibilities that the Director did before the new candidate came on board? Is it the new candidate?

smkrause · July 2003

The position will be eliminated. The President will oversee the activities of the remaining Engineering Department.

mwild31 · July 2003

I'm sure that a lot of people won't agree with me, but here goes:

1. I would make sure that your employment attorney is aware of this situation and your fears of a EEOC action/lawsuit. I would strategize with that attorney on possible scenarios and how to handle the term. meeting.

2. I would contact, if you have it, the EAP and ask for a supervisor's consult and share with the person on the phone your concerns about safety and seek advice from them as well on how to handle the term. meeting.

3. I would create a heck of a severance package. I know it sounds funny to financially award a potential loose cannon and a poor performer, but it might help ease the employee into a win-win situation. Sometimes, if the employee feels financially secure (for a month or a couple of months) it can ease the stress.

4. As a safety precaution, prior to the term. meeting and for a period of about 2 weeks, I would have the people you feel most concerned about park their cars closer to the shop and make sure to restrict off-site visitors as much as you can. This may be over the top advice, but I'm throwing it out there anyway.

Let us know how it goes.

smkrause · July 2003

Thanks for your advice. I am contacting our Gneeral Counsel to review this with her. Will let you know what happens.

Thanks Again!

Margaret Morford · July 2003

I think you should get some legal advice. With that said, you might consider offering him a generous severance package if he signs a release, then you wouldn't have to worry about a lawsuit unless the EEOC became interested in pursuing this, which is unlikely for a specific individual. Your release needs to be specially drafted to ensure it meets the ADEA guidelines so it is enforceable.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Age Discrimination and Workplace Violence

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