Age-biased comments enough for trial

EEOC v. Warfield-Rohr Casket Co. Inc., 4th Cir., No. 03-1648, April 8, 2004.

A federal trial court erred in finding that a company that sells burial caskets conclusively established that it would have fired, regardless of his age, a 56-year-old employee it had called "too old," the 4th U.S. Circuit Court of Appeals recently ruled.

Frederick Kuehnl worked as a casket trimmer for the Warfield-Rohr Casket Co. for nearly 30 years. Toward the end of the 1990s, demand for the company's caskets diminished to the point that Kuehnl was one of only two employees in his division. In 1998, the company added a third employee--a 33-year-old man--to the division.

During a conversation in 2000, owner William Ayres asked about Kuehnl's age and about when he was planning to retire. At that time, Kuehnl was 56, and he planned to continue working until retirement at age 65.

A few weeks later Ayres fired Kuehnl. According to an entry in Kuehnl's personal journal, Ayres told him: "You're getting too f---ing old, you're making too much f---ing money. Get the f---out." Ayres disputed this version of events and maintained that he fired Kuehnl because he was making too much money and had trouble getting along with co-workers.

Kuehnl filed an age discrimination claim, which the Equal Employment Opportunity Commission pursued in court. The trial court dismissed Kuehnl's case without a trial.

On appeal, the 4th Circuit noted that, to maintain the age discrimination claim, Kuehnl only needed to show that his age was a "motivating" factor in the company's decision to fire him, not the only factor. The court pointed to Kuehnl's personal notes recording that the company's owner told him he was getting too old. To avoid liability, the company then needed to show that it would have fired Kuehnl regardless of his age. Finding that a reasonable jury could find that the company would not have fired Kuehnl if he had been younger, the 4th Circuit reversed the lower court's dismissal and sent the case back for trial proceedings.

RELATED ARTICLE: Professional Pointer

While typically more difficult for employees to prove than other types of discrimination cases, age bias claims can have far-reaching consequences for a company with a substantial proportion of employees older than 40. Even for claims lacking any merit, the litigation costs alone should motivate employers to steer far away from any statements or actions that could be interpreted as age bias.

BY DECLAN C. LEONARD, AN ATTORNEY WITH ALBO & OBLON IN ARLINGTON, VA.

COPYRIGHT 2004 Society for Human Resource Management
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