Human Resource Blog

Terminated after wage discrimination accusation?

An employee has worked as a paralegal at a Minnesota law firm for 3 years. For the past year work has been very slow for this employee. She has asked many times for work. The last time she asked one of the attorneys for work she was told there wasn’t any and she should check with other departments. A few days later a new case came in and was given to another paralegal. The employee went to HR and asked if they knew what was going on. This paralegal used to be very busy and billed over the amount of hours required in 2006 & 2007. In 2008 she was 100 hours below the annual performance goal. The HR person said she hadn’t heard anything and the employee says she has not heard any complaints about her work up to that point. The employee made a casual comment that maybe the attorney preferred a younger person.(The employee is 64 the other paralegal is about 40). The HR person got all excited by the remark and decided she had to have a formal investigation into the age discrimination concern. She asked 9 attorneys. She then told the employee that they all absoultely said they were not discriminating against the employee because of her age or knew of anyone that was or heard any remarks etc. They said that the employee is a very nice person, but that she is slow, that she asks too many questions, and needs more hand-holding than the other paralegals. That is why they have not been giving her work. No one has ever told the employee that before. She has never missed a deadline for being too slow, or was too slow in completing a project. The HR person said they can’t retaliate against the employee because of this investigation (which the employee did not ask for), but when the employee asked if she was going to have a job, the HR person said she did not know because they are concerned about work being so slow. The HR person implied that the firm may have to reduce the workforce and because the employee is slow, and asks too many questions, she may be laid off.
Was the investigation into age discrimination appropriate? Is there anything that the employee can do to avoid lay off?

There are basically two issues here: the question of age discrimination and a performance issue. The challenge is to try to seperate the two.

This investigation by the HR person was entirely appropriate and it sounds like it was handled well. Although the employee only made a casual comment that this might be age discrimination, every employer must take this matter seriously. This is a little like making a casual comment that you think John might be stealing money out of the company safe, or using cocaine in the mens room, and expecting the employer not to follow through. Discrimination based on age (between 40 and 70) is illegal under the ADEA, or Age Discrimination in Employment Act, an amendment to Title VII of the Civil Rights Act, a federal law. So every employer must take it seriously at all times. So it is to the HR persons credit that she took action on this very serious allegation.

It appears that this employee has a performance problem. She does not work as quickly as the other paralegals, and she asks too many questions. It may be that the way this employee works has not changed, but the industry-wide expectations of paralegals have changed over the years.

It is good that the employee is not missing any deadlines. But it appears that one reason she is not missing any deadlines is because, when something needs to be done very quickly, the work is given to another paralegal.

Even if the employee is not missing deadlines, if it takes her 2 days to do a project that would take another paralegal 1 day, that is a performance issue.

Ideally, the paralegals supervisor would have addressed this performance issue with her. It is sad that she had to go to HR, to uncover this information and it indicates that the employer is not handling employee evaluations well. However, there are many employers who do a poor job in this area.

If the employer decides to lay off paralegals, they may very well choose to lay off the person who has performance problems. As long as an objective criteria is used to determine who will be laid off, that is not a problem.

The HR person was correct that the employee cannot be laid off solely due to her age, or to the age discrimination investigation. But she can be laid off for genuine performance issues. The HR person could also suggest that the 64-year-old paralegal seek additional training, at her own time and expense, so that she will be able to work more quickly and ask fewer questions.