An employer’s retention of a younger, less-qualified employee instead of the older, more experienced employee, who was terminated during the Company’s reduction in force, can give rise to liability under the Age Discrimination in Employment Act (“ADEA”), according to a recent decision by the United States District Court for the Southern District of Texas. Harrison v. Chipolbrok America, Inc.

After a downturn in business, the Company conducted a reduction in force (“RIF”) terminating the 64-year-old Plaintiff, while retaining a 27-year-old employee. Plaintiff filed suit under the ADEA. The Company moved to have the case dismissed before trial, claiming that the Plaintiff was terminated due to the reduction in force and that Plaintiff was not qualified for the shipping associate position. The District Count denied defendants’ motion, stating the Plaintiff produced enough evidence to merit sending the age discrimination claim to trial. The Plaintiff presented evidence showing that she was qualified for the position including that Plaintiff’s manager wanted to keep Plaintiff on as a shipping associate and that Plaintiff actually trained the 27-year-old employee who was given the job over the Plaintiff. Additionally, there was testimony that the Company President allegedly stated that they did not want to keep Plaintiff on after the reduction in force because the 64-year-old employee was too old, too sick, and was costing the Company too much in medical expenses.

Before conducting a RIF, the company should carefully review its selection criteria and be sure it has support for its selection decisions. The mere statement that an employee was laid off with others as part of a RIF does not necessarily provide a complete defense.