Publications
Knowing When To Keep Your Mouth Shut
Stephen Fakete was an audit consultant for Aetna. At age 56, Fakete was the oldest employee in his group and three years from being eligible for retirement. Fakete asked his supervisor about his future with the company. Fakete alleged that his supervisor said that he did not have a rosy future, because the company was "looking for younger, single people that will work unlimited hours . . .".
Over the next few months, Fakete received written warnings for absences, and his employment was terminated three months before his pension would have vested. Fakete's supervisor claimed that he was fired due to his absences and some discrepancies in his personal expenses. In fact, there may have been enough of a factual basis to justify the termination. However, based on his supervisor's comments, Fakete claimed that, in reality, he was fired on account of age discrimination.
Fakete's claim was dismissed by the trial judge, but an appeals court reinstated his claim, on the basis that the supervisor's comment constituted direct evidence that Fakete's age was in fact a motivating factor in his supervisor's decision to terminate him. Aetna now faces a trial on the claim.
How could the lawsuit have been avoided? Hiring young people (as opposed to equally-qualified older people) on the supposition that they will be willing to work day and night might make economic sense, except for the fact that it is blatantly illegal. To many managers, however, whatever serves the bottom line is fair game, and they don't mind telling an employee about it. That attitude, in addition to making Fakete's case, finds its way into ADA and FMLA claims all the time: as an ostensible motivation tool, managers tell employees that they are going to be passed over for promotion or terminated because the company needs people who don't have disabilities or don't take leave. A trained manager knows better; at the very least, a trained manager knows when to keep his or her mouth shut.
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