In the case of Inman v. Klockner Pentaplast of America Inc. (KPA), Dean Inman, a former vice president, alleged he was fired while the company was attempting to create a younger image. The district court originally determined that there was insufficient evidence of age discrimination. On October 22, 2009, however, the 4th Circuit Court of Appeals reversed the district court’s initial ruling after oral arguments were presented and the AARP filed a brief in support of Mr. Inman.
The crucial piece of evidence that overturned the decision? A napkin.
I don’t know if it was a cocktail napkin or one fit for a full meal but it was certainly large enough to do a lot of damage for this company. Several months before the plaintiff was terminated, the president of KPA met with a consultant hired to recommend suggestions to overhaul the company’s image and operations. During that meeting, the president jotted down notes on the napkin. Among those notes was the word “young”. That one little word on that one little napkin was enough to bring this case back to court.
The reason is this: Under the Age Discrimination in Employment Act, the employee must present evidence that the employer’s stated reason for the termination was a pretext for discrimination. The emergence of this napkin provides such evidence, according to the plaintiff, in that the company wanted a younger staff in order to promote a younger, more energetic image. Burden of proof is now on the company to prove otherwise.
Regardless of anything else said in that meeting, that one adjective can be enough to bring the company to its knees if a jury determines that the president of the company launched an initiative to revitalize the company with a younger image following the meeting with the consultant. Add to this the fact that the plaintiff claims the president told him when he was fired that the company needed a “more energetic person” in order to have the “appearance of a revitalized company” rather than “the same old things” currently in place.
So what’s a company to do? Realistically the human resources department can’t censor everything that comes out of managers’ mouths. We don’t know if the president of the company made these statements or not, but I’m sure we’ve all worked with managers who would. The trick is to get managers to realize that everything they say is said on behalf of the company, and the company is held accountable to their words. Nothing is said lightly, no matter how lightly it is said. And nothing is off the record.
Managers also need to be taught to be judicious when they speak with employees, andabout employees. If they could not defend their words to a jury, they are better off not spoken. And put absolutely nothing in writing that cannot be defended as accurate and true. As the case above shows, the devil is in the details, and the devil has a law degree. Choose your words wisely.
Submitted by: Paula Agee, SPHR; Senior Consultant with IntegrityHR, Inc.
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