Playbook.jpgThe NFL’s Arizona Cardinals have been one of the surprising success stories this season. One of the reasons for the team’s success is the commitment it made to an older (ancient by NFL standards) coaching staff.

A recent article in the Wall Street Journal (Kevin Clark), The Cardinals’ Secret: Elderly Coaches, highlights the Cardinal organization’s deliberate choice in going with an older coaching staff. This staff includes head coach Bruce Arians who is 61, assistant coach Tom Pratt who is 78, and assistant Tom Moore who is 75. In fact, Mr. Pratt was a coach in Superbowl I, which was played in 1967, which I understand was played shortly after the invention of the wheel.    

Changing to an “older” coaching staff has paid off. Specifically, the Cardinals were a dismal 5-11 last season and fired their head coach. This year, the team is now 7-5 this season and has a realistic chance to make the playoffs. Despite this success, committing to an older coaching staff is an anomaly; The WSJ article further noted:

Bias against older coaches may be reflected in the fact that only three coaches in history coached their first NFL game at an age older than Arians did in starting this fall at age 60. Arians said some young coaches may feel intimated by the prospect of a more experienced assistant … Another fear is that older coaches may lack energy. 

However, these “fears,” especially when articulated by managers, are precisely the sort of stereotypes that often get employers into age discrimination lawsuits.  

Overview of Federal and Michigan Employment Age Discrimination Protections    

Before looking at a specific example of an age discrimination lawsuit, it is important to understand the statutory framework applicable to age discrimination. In that regard, both federal and Michigan employment law protect employees against age discrimination. Specifically, the federal Age Discrimination in Employment Act of 1967 (ADEA) and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) prohibit employment discrimination on the basis of age.

Under both of the federal and Michigan statutes, an employer may not refuse to hire, discharge, or discriminate with regard to a term or condition of employment on the basis of an individual’s age. Both statutes also prohibit retaliation for filing a claim, for participating in any investigation or proceeding, or for opposing any unlawful practices.

Differences Between Federal and Michigan Age Discrimination Law

There are significant differences between the federal and Michigan employment age discrimination statutes.

First, the ADEA covers employers with 20 or more employees. In contrast, Michigan law applies to employers with 1 or more employees.

Second, the ADEA protects people who are 40 years of age or older. Michigan law, however, refers only to chronological age and does not contain any limitation. In other words, employees under the age of 40 may be protected against age discrimination. 

Age Discrimination in the Workplace – Theory vs. Reality   

Going back to the idea that anti-age discrimination statutes protects against negative stereotypes about older workers, a case example illustrates how articulating comments that could be construed to be discriminatory can result in an age discrimination lawsuit against the employer, as well as the difficulty plaintiff employees have in successfully maintaining such lawsuits. 

In the lawsuit captioned Sobieski v. Takata Seat Belts, Inc. a manager took over supervision of 7 project engineers, five of which were under thirty years of age. The remaining two were over 60 years of age. 

One of the two over 60 engineers eventually sued his employer for age discrimination after he was fired. In support of the plaintiff’s age discrimination claims, he relied heavily on the following comments made by his younger supervisor: 

  • “these [older] guys just won’t work and we’ve got to get more young people in here.”
  • “I can’t work with older guys.”

The plaintiff also presented evidence that he and the other over 60 engineer were both fired while under the supervision of the manager who made these comments.

The court, however, eventually ruled that the plaintiff employee did not meet his initial burden of proving that age discrimination was more likely than not a substantial or motivating factor in the decision to terminate his employment. Accordingly, rather than allowing the case to proceed to a jury in order to determine whether there was a causal connection between the supervisor’s age-related statements and the termination of plaintiff’s employment, the case was dismissed on the employer’s motion.

Take-Away for Employers

The Cardinals organization deliberately opting for an older coaching staff, i.e., managers, goes against the grain in terms of hiring practices. But the success attributable to that older staff certainly undercuts the age stereotypes used to explain why most NFL teams opt for youth when it comes to hiring coaches.  

As to the statements from the lawsuit discussed above, they were enough to give the plaintiff a factual and legal basis for suing his former employer for age discrimination. While that lawsuit was ultimately dismissed, the employer still incurred the cost of defending he lawsuit. And not all courts will take a view that is as favorable to the employer.

In my experience employers often do a good job of promoting “big picture” anti-discrimination policies and educational initiatives for management. However, as this sort of case illustrates, such policies must actually be implemented. And implementation requires special attention to limiting employment evaluations – informal and formal – to the merits of an employee’s performance, as well as avoiding comments that could later provide ammunition for a discrimination lawsuit.

For more information about complying with federal or Michigan age discrimination protections or discrimination lawsuits, contact Michigan employment attorney Jason Shinn. Since 2001, he has represented companies and individuals in complying with rights and obligations under federal and Michigan employment laws, as well as representing these clients if litigation is necessary.