Monday, November 5, 2018

When salary is a proxy for age discrimination

Jim Boylan, recently fired as an assistant coach with the Cleveland Cavaliers, has filed an age discrimination lawsuit against his former employer. According his lawsuit [pdf], then-head coach Ty Lue told him that team owner Dan Gilbert "wants to go younger" in his position and "find somebody who's a grinder and younger."

On its face, those statements certainly seem like direct evidence of age discrimination.

But are they?

As the lawsuit alleges, those statements were made in the context of a discussion about the team carrying three high-priced assistant coaches, and ownership's desire to decline Boylan's option to save the team some cash.

Jimbo, what’s up, yo? This is T Lue. I had a talk with Koby yesterday. He does not want to pick up your option. He said it's way too much money. They're not gonna pay that kind of money for three assistants on the bench. He wants to go younger in that position and, you know, find somebody who's a grinder and younger in that position. And he said he does not want to pick the option up for I guess it's 500 or - I’m not sure. He said five something. And he just said it's too much money, he said, so we'll be paying Longabardi and LD. So he just said he wanted to go younger at that position and he does not want to pick up the option.

Does a difference exist between firing someone to shed a high salary versus firing someone because of their age?

Not surprisingly, I'll give you the stock lawyer answer. It depends.

In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the "but-for" (that is, the only) cause of the challenged adverse employment action. Thus, as my good friend Dan Schwartz pointed out on his Connecticut Employment Law Blog, under Gross, "an employer who believes it can get the same work done by an someone at a lower salary may sometimes survive an age discrimination claim — so long as age doesn't factor into the decision."

Ohio courts, however, have taken a different path under Ohio's parallel state age discrimination statute,rejecting Gross and holding that mixed-motives (age was a motivating or a substantial factor in the employer's action) still suffice to establish age discrimination. Because Boylan is proceeding just under Ohio law, and has not pursued claims under the federal ADEA, he will have an easier time establishing that the Cavs' goal of shedding salary was a pretext for age discrimination.

That said, this is a difficult issue, and firing to shed salary always raises age-discrimination concerns (or, at least it does when the fired employee is age-40 or older). Before you fire to shed high salaries, consult with you employment counsel to analyze potential discrimination issues and to ensure that you what you can to avoid the cross-hairs of an age-discrimination lawsuit.

* Image by Erik Drost (Cleveland Cavaliers) CC BY 2.0 , via Wikimedia Commons