Reprinted from the February 1, 2008, issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Hiring For "Fit" Can Result In A Legal Foul

Nothing makes managers happier than a department full of great performers who all get along. Employee compatibility, though, isn’t always a successful defense for refusing to hire or for firing the square peg in your round-holed department, if it’s perceived as a pretext for illegal discrimination.

ODD MAN OUT...

“Conference call in 15 minutes,” manager Trent Yates reminded his employees. When Don Merris didn’t race down the hall after him, Yates turned around and clapped his hands, “Come on, come on. You’re so slow. Where’s your sense of urgency?”

Merris rolled his eyes. The 54-year-old saw no point in sprinting down the hallway when he could walk and still be on time for the call. He expected it, though. As the oldest member of the department, he endured jabs at his age ever since his first day on the job a few months prior.

What Merris didn’t expect was to be demoted a few months after that. A 34-year-old took over for him. In defending his decision, Yates said, “As I told you during the hiring interview, this company is simply different than most in the industry...than most you’ve probably worked for. It has younger contributors, inexperienced front-line managers, and a super fast pace. I need you to show me more energy.”

“I get all of my work done on time,” protested Merris. “I don’t see what the problem is.”

“The problem is you’re dragging down the department’s energy level. Don’t be such an old fuddy-duddy.”

...OR OLD MAN OUT?

In the ensuing weeks, Yates repeatedly told Merris that his opinions were “obsolete” and “too old to matter,” and chastised him for being “too slow” and “lethargic.”

Yates ultimately terminated Merris. “This just isn’t working out. Adapting to the company’s culture is a must for all new hires, and you haven’t succeeded. You’re not a cultural fit.”

Merris challenged the idea of not being a “cultural fit” as being a pretext for age bias. On top of the alleged age-based comments made by Yates, Merris also presented statistical evidence that older employees were more likely to receive poorer performance evaluations and lower bonuses. An appeals court allowed the claim to proceed.

EVEN PLAYING FIELD

Worrying about an older worker fitting into a younger department may seem like a legitimate concern, but it can lead to unlawful discrimination. Same goes for concerns about a woman fitting into an all-male department or a minority fitting in with a group of white employees. When hiring, don’t focus on age or other protected characteristic; rather, focus on personality. Assess all applicants on their:

• general energy level,

• friendliness,

• enthusiasm to learn,

• willingness to accept feedback,

• willingness to be flexible,

• comfort level in working with and for individuals who are different from them,

• general passion for the job, and specific interest in working for the company and in your department, and

• fit with the company’s mission statement or core values.

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