Age discrimination in the era of COVID

Dermatology Times, Dermatology Times, December 2020 (Vol. 41, No. 12), Volume 41, Issue 12

In this month's Legal Eagle article, David Goldberg, MD, JD, explains how to avoid an age discrimination lawsuit from a former employee in your office by bulletproofing human resources (HR) documentation.

Doctor Doc has a large practice with many productive, happy employees. Unfortunately, the pandemic has forced him to terminate many employees. One of these employees, an elderly woman who had worked with him for more than 20 years, had become increasingly combative. He wanted to terminate her for years but was afraid she would file an age discrimination lawsuit.

He tells other staff members that the pandemic finally gave him the opportunity to “get rid of her.” He terminates her on the spot. Immediately his office becomes calmer and more productive. Six months later he receives notification that he is the defendant in an age discrimination lawsuit by the former employee. How can this be?

The general assumption is that employees do not sue happy, worker-friendly companies like most dermatology o­ffices. Employee lawsuits supposedly happen in companies with bad bosses, poor working conditions and hostile environments. This is just not correct.

Employee lawsuits can and do happen anywhere. According to the U.S. Bureau of Labor Statistics, in 2019 alone, disgruntled employees filed 15,573 age discrimination complaints and 39,110 complaints of employer retaliation.

Dermatologists do need protection, and that starts with bulletproofing human resources (HR) documentation:

1. Make the employee handbook required reading

Spell out company HR policies in writing. Use a consultant experienced in employment law to help create or review the manual. Require managers and employees to sign off on their receipt and acceptance of baseline employment policies when they start.

2. Follow the law

Post government-required documents. Make sure you know what is required and do it. Create and maintain a good filling system with a secure place for sensitive information. Store employee personnel, medical and confidential records separately to prevent unauthorized staff from accessing privileged information. There is no need to create a medical or confidential file for each employee. But, should the occasion arise, that information should not be placed into the main personnel file.

3. Implement a document retention policy

What HR documents do you need to keep? What files, paper or digital, can or should be discarded on a regular basis? Old emails and other digital records can help or hurt the company. Deleting them on a schedule might be a good idea. But there must be a written policy—and the company must stick to it.

4. Conduct performance reviews

The performance review is your main opportunity to document an employee's failure to meet expectations. Be specific. You can—and must—inform an employee on what he or she is doing wrong and warn of the consequences if performance or behavior does not improve. Take notes to document the meeting and include an account of the employee’s responses. Work together to formulate an action plan for improvement, with a clear time frame. Put it in writing. Have both parties sign it. Revisit it together at the planned dates.

5. Terminate compassionately

If reviews are done properly, no termination should come as a surprise. But it is always unpleasant for the person being terminated. Maintain a calm and compassionate attitude and steer the employee toward finding new employment that is a better fit, rather than seeking retribution through legal action. Termination of the employee by Doctor Doc could and should have been easy process. Had he taken the above approach a lawsuit likely would not have happened.