REPLACEMENT AND AGE DISCRIMINATION

By Bradford C. Weber, Esq.

Benjamin, Yocum & Heather, LLC

            Age discrimination claims are a concern for any employer.  In order for an employee to establish a prima facie case of age discrimination in an employment discharge action, the employee must show that (1) they were a member of the statutorily protected class, (2) that they were discharged, (3) that they were qualified for the position, and (4) they were replaced by or that their discharge permitted the retention of a person not belonging to the protected class.  Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146.  Three of these four elements are rather straightforward; specifically, elements (1), (2) and (3).  Essentially, an employee must prove that they were over forty years of age, discharged and were qualified for the position. 

            However, it is a grayer area with respect to the fourth requirement, replacement.  Courts in Ohio have, through case law, clarified what can constitute replacement for purposes of an age discrimination action.

            A person is not “replaced” when another employee is assigned to perform that employee’s duties, in addition to other duties, or when the work is redistributed among other existing employees already performing related work.  Atkinson v. Int’t Technegroup, Inc. (1995), 106 Ohio App.3d 349; Abrahms v. American Computer Technology (2006), 168 Ohio App.3d 362.  Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement.  Lilley v. BTM Corp., 958 F.2d 746, 752 (6^th Cir. 1992).  It is not replacement when a younger employee assumes some, but not the majority, of a discharged worker’s former duties.  Mendlovic v. Lifeline Screening of America, Ltd. (2007), 173 Ohio App.3d 46, citing Stipkala v. American Red Cross, 2000 U.S. App. LEXIS 11833 (6^th Cir. 2000). 

            If an employee establishes a prima facie case of age discrimination, the employer may still overcome the presumption by coming forward with a legitimate, non-discriminatory reason for the discharge.  Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501.  Summary judgment has been upheld for an employer where the evidence shows that the employee’s termination was motivated by the legitimate business purpose of reducing its work force for financial reasons.  Mendlovic, supra, citing Boggs v. Scotts Co., 2005 Franklin App. No. 04AP-425, 2005 Ohio 1264. 

            With the aging of the American workforce, discrimination claims based on age can be a growing concern for employers. Since every case involves unique factual issues, careful consideration and consultation with counsel is an important step if age might be an issue in an employee discharge situation.