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EMPLOYER
CAN BE SUED FOR "REVERSE" AGE DISCRIMINATION By:
Janet E. Lanyon
The Michigan Court of Appeals recently held that an employee
could sue her employer under the Michigan Elliott-Larsen Civil Rights
Act for discriminating against her because she was "too young."
The Court’s decision in Zanni v Medaphis Physician Services
Corp. reverses a 1994 decision which refused to recognize such claims.
Although the federal Age Discrimination in Employment Act (ADEA)
covers persons 40 years of age and older, the Elliott-Larsen Civil Rights
Act covers persons 18 years of age and older. In
Zanni, a 31-year-old account executive claimed that she was subject
to discrimination based on her relative youth after she was told by
the supervisor who later terminated her that her voice sounded too young
on the phone, and that clients wanted an older account executive.
Ms. Zanni was replaced by an older employee.
In finding that Ms. Zanni could sue for age discrimination under
Elliott-Larsen, the Court of Appeals relied upon the express language
of Elliott-Larsen, which prohibits discrimination based on "chronological
age." The court found
nothing in the statute which limited its applicability to any particular
age group.
The Zanni decision poses a dilemma for Michigan
employers in that they may be sued for age discrimination under Elliott-Larsen
when a younger employee is replaced by an older person as well as when
an older employee is replaced by a younger individual.
Further, as the Court of Appeals gave its decision retroactive
effect, employment decisions made within the last three years could
be the subject of such "reverse" age discrimination claims.
It is likely that the Zanni decision will be appealed
to the Michigan Supreme Court, which could modify or overrule the decision.
It is also significant that the employee in Zanni
claimed that her supervisor expressly criticized her relative youth
prior to discharging her, thus providing a "smoking gun."
In light of Zanni, employers should redouble their
efforts to establish documented, legitimate, nondiscriminatory reasons
for their employment decisions so as to provide a defense to age discrimination
claims by both younger and older employees.
Employers should also avoid providing potential plaintiffs with
a "smoking gun" by not making statements which reflect that
an employee or applicant is either too young or too old. |
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