Legal Eagle Eye Newsletter for the Nursing Profession (3)11 Aug 95


Quick Summary: Age discrimination in employment has four elements:

1. The victim is a member of the protected class of persons aged forty to seventy.

2. The victim suffered an adverse employment decision.

3. The victim's work performance was satisfactory.

4. The victim was replaced, which can be can be particularly telling evidence of discriminatory intent by the employer when the person is replaced by a younger worker.

  Any increased costs associated in the employer’s mind with keeping older workers are not sufficient grounds for removing older workers.  SUPREME COURT OF NORTH DAKOTA, 1995.

   The Supreme Court of North Dakota had to consider whether age discrimination in employment had taken place when a fifty-eight-year-old individual was let go during a needed reduction in force, and his former duties spread out among other, younger individuals who did not lose their jobs during the staff reduction. The court decided that no age discrimination had taken place under these circumstances.

  One of the complexities of anti-discrimination law is that the employee does not always prevail even if the basic elements of an apparent case of discrimination are established. Once the basic elements of a case of discrimination are shown, the employer may still come forward with evidence to show that there was a legitimate, non-discriminatory reason for the employer’s actions.

   The employer in this case was able to demonstrate to the court that it was necessary to carry out a reduction in force because of the legitimate need to cut costs. In fact, in this case, the employee in question was not replaced with a younger worker taking over his position. His position was abolished, and the duties of his position were divided up and added to the duties of other existing employees who did not lose their jobs in the force reduction, albeit considerably younger employees. This factor helped to convince the court that there was no intent to discriminate against this individual, but rather a legitimate need to abolish his position in order to cut employee costs.

   Another wrinkle in this case is that it was brought under state law rather than Federal law. It is important for employers and workers alike to recognize that the substance of Federal and state law are basically the same around the U.S. State laws outlaw discrimination, but the state courts often look, as the North Dakota court did, to Federal court decisions to define exactly what is and what is not covered by employment discrimination.

   However, Federal law requires that a case be brought before the EEOC for a ruling, while state law in many states permits the employee to file a case directly with a court seeking a jury trial on the issue of damages, including mental anguish and emotional distress. Schumacher vs. North Dakota Hospital Association, 528 N.W. 2d 374 (N.D., 1995).