By Dan Norwood
A settlement in an age discrimination in employment case announced by the EEOC on March 1, 2023, should be of the highest importance to every human resource professional in America. Indeed, every HR professional should keep a copy of the decision readily available to show to their organization’s top management, if they ever feel their job is in jeopardy for “doing the right thing” by educating and then expecting, even requiring, their organization to comply with the laws in the United States prohibiting discrimination in employment. The settlement was in the case of EEOC and Diane Nolan v. Fischer Connectors, Inc. No. 1:22-cv-03884 (N.D. Ga. Feb. 28, 2023).
The case involved a Swiss-based national manufacturer of medical devices and Diane Nolan, who was the Human Resources Director at the company’s headquarters in Alpharetta, Georgia, from 2007 to 2020. The complaint filed in the case reveals that in 2019 the new President of the company’s national operation began repeatedly asking Nolan questions like: “Why is the workforce so old?” and “What age is mandatory retirement [in the U.S]?” He told her he had been instructed by the company’s Chief Executive Officer to hire a new, younger management team and he planned to replace anyone in senior management who was over the age of fifty-five with a younger person.
From January to July 2020 the company did just that when it terminated five upper management employees, all over the age of fifty, under the guise of “job eliminations” and replaced them with substantially younger individuals under slightly different job titles with the same or similar job duties. Finally, because Nolan would not remain silent and go along with the evil discriminatory scheme and was sixty-seven years old, she was called into the President’s office on July 14, 2020, and terminated too. He told her: “You have done nothing wrong. I am just following orders in building a new, younger team for the CEO.” She was then replaced with two substantially younger individuals, ages fifty-two and thirty-two.
In the EEOC press release announcing the settlement, Marcus Keegan, the agency’s Regional Attorney for the Atlanta District Office, said: “This was a textbook example of age discrimination in violation of the Age Discrimination in Employment Act … which makes it clear that employment decisions must be made based on employee qualifications rather than on stereotypes about an employee based on their age.” In the Consent Decree entered in the case, the company agreed to pay Nolan $460,000.00 and to train its executives, managers, and employees on its obligations under the ADEA to prevent age discrimination from happening again in the future. The award not only fully compensated Nolan for all her lost pay and benefits but also awarded her liquidated damages for those losses, which the ADEA allows when the employer’s unlawful conduct is willful.
This case is the most recent example of why I have said for many years that it is not the state or federal employment discrimination agencies, or even employee-side attorneys, like myself, who are the First Enforcers of our employment discrimination and retaliation laws. It is the HR professionals in a company, organization or government agency who guarantee that every American citizen has a shot at reaching the American Dream.
The Triple Benefits of Ending Discrimination in Employment
When President Lyndon Johnson signed the Civil Rights Act of 1964, he said there would be triple benefits derived from this important new law prohibiting discrimination against citizens based upon their race, color, sex, national origin, or religion. The first benefit would be that every American citizen would be able to get and keep the best job possible based upon their qualifications and skills. Second, employers in America would be employing the best individuals available to help their organization succeed. And third, as a result, America would be more successful. Three years later, when he signed the Age Discrimination in Employment Act of 1967, he reminded us that those same triple benefits would also be derived from that newest anti-discrimination law.
The Role of the Courageous Human Resources Professional in Ending Discrimination in Employment
It is the courageous human resources professionals who stop discrimination in employment from occurring at their workplace who will help save our nation from more of the painful harms that we have experienced in our history due to discrimination. If every HR professional courageously does his or her job of questioning and educating every member of management in their company, organization or agency, from the lowest level supervisor to the highest level executive, about the anti-discrimination laws in the United States prohibiting discrimination against individuals in hiring, promotion, discipline or other terms and conditions of employment because of their race, color, sex, sexual orientation, national origin, religion, age or disability, employment discrimination in America will end. Indeed, the courage of an individual human resources professional can be just like the courage of that little Dutch boy in the famous story we were told as children who stuck his finger in the hole he saw in a dike and saved a whole nation.
Importantly, our laws prohibiting discrimination in employment also prohibit retaliation against employees who oppose discrimination in employment. Many states now also have what are called whistle blower protection laws that prohibit retaliation against any employee, even a human resource professional, who refuses to participate in or remain silent about illegal activities, which includes employment discrimination. For example, in Tennessee the Public Protection Act, T.C.A. 50-1-304, prohibits the retaliatory discharge of an employee who refuses to participate in or remain silent about illegal activities.
As a labor and employment law attorney who has successfully prosecuted hundreds of employment discrimination and retaliation cases since 1980, I have been an advocate for employees holding positions at every level of a company, organization, or government agency. In every one of those cases I have won at trial my first witness was my client. More importantly, my second witness was always the human resources manager who either failed to detect and prevent the discrimination or retaliation when it was happening or who was a willing partner with the member of management who engaged in it.
HR professionals must never forget their first duty is to the enterprise, not to individual managers or executives who may want to engage in unlawful discrimination or retaliation. They must have the courage to tell those individuals they cannot engage in such illegal activities. By showing such courage, not only will the time and major expenses that come with lawsuits be avoided, but the human resources professional will be ensuring that the enterprise is employing, promoting, and retaining the best person for a job.
During my career, I have had the honor of representing half a dozen human resources managers who had the courage to do their jobs well but got fired for doing so. While I call myself the Working Boomer Advocate because I am mainly focused on being an advocate for regular employee victims of age discrimination, sometimes I must call myself the Human Resources Professional Advocate when I fight for a human resource professional. In one such case I handled a few years ago, my client was the Human Resources Manager of a trucking company who was directed by the company’s vice president not to hire any drivers over age fifty.
Knowing that to follow such a directive would constitute unlawful age discrimination, that courageous human resources professional disobeyed the directive and hired a fifty-eight-year-old applicant who had an excellent twenty-five-year driving record. When that vice president learned this driver had been hired, she immediately fired her on a pretext. Soon after a lawsuit was filed under the Tennessee Public Protection Act, a very good out-of-court settlement of her claim was offered, which she accepted.
In this and other cases I have handled representing First Enforcers, several factors made the difference in them being able to get a quick and full remedy for their unlawful discharge. First, they politely and professionally refused to participate in or keep quiet about the unlawful activity. Second, they kept proof of their refusal in the form of emails, text messages or other documents, or in some cases made secret recordings of conversations, when the employer, organization or agency policies or state laws did not prohibit such recordings being made. Remembering these stories always reminds me of the very essential role human resources professionals continue to play in helping citizens, employers and our country be able to reap the triple benefits promised with the passage of our civil rights laws prohibiting discrimination in employment.
Working Boomer Advocate
dan@workingboomeradvocate.com