A federal District Court in Michigan recently found that a plaintiff had presented enough direct evidence of age discrimination to merit a trial. The plaintiff worked as a member of defendants’ kitchen staff for about two months. The day after his termination, plaintiff met with the company’s owner to discuss the situation further. Unbeknownst to the owner, the plaintiff recorded the conversation.

On the recording, the owner said the plaintiff had not been “fitting in” with the rest of the staff.  At one point, plaintiff stated, “So you think it’s probably the age difference.”  The owner responded, “I think that’s probably a big part of it, from day one.”  The conversation continued in a similar fashion.

The plaintiff filed a Charge with the EEOC alleging age discrimination and eventually filed suit against his former employer and its owners.  When confronted with the recorded conversation, the owner explained that he “was trying to soften the blow,” “thought it was the kind thing to do,” and “was just trying to make [the plaintiff] feel a little bit better” about the termination.

Lesson learned?  While compassion may play an important role in the employee-separation process, employers have to pay attention to how that compassion is displayed.  It isn’t “kind” to blame an employment decision on the employee’s age, race, sex, disability or any other protected characteristic; if anything, it is likely to seem unfair – both to the employee and to the court and jury.

Sicuso v. Carrington Golf Club, LLC