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Employment Blog

Management Comments can Create a Smoking Gun for Discrimination Claims

Authored by Dean R. Dietrich
Posted on August 7, 2013
Filed under Employment

A recent decision by the U.S. Court of Appeals for the Sixth Circuit gives a prime example of how comments by an employer-representative can support a claim of discrimination. A sales manager in his late fifties showed a potential basis for a claim of age discrimination because of the comments made by a younger supervisor. The record of comments caused the Court of Appeals to reverse a lower court decision in favor of the Company and refer the matter back for a trial on the merits.

The younger supervisor (in his thirties) made comments that the sales manager was "too old and too slow" and made "assumptions that younger people do not make." In addition, at about the same time, the sales manager was placed on a performance improvement plan that the employee was incapable of satisfying because of the nature of the conditions that were included in the plan. The Court of Appeals concluded that the proximity of these statements by the supervisor and the development of the impossible to satisfy improvement plan formed a basis to find a genuine issue of material fact that must be tried to the court.

This is a prime example of how statements by a manager can create an impression or a context through which a reviewing court will question whether age (or other discriminatory factors) was the real justification for some type of adverse employment action being taken. Managers need to be aware of this potential for creating a "smoking gun" that can harm the Company. The Company must take steps to train managers so that they understand the consequences of their statements and avoid any actions that could be construed as showing discriminatory intent.