of his termination (while Blair was on vacation) and signed the letter outlining the terms of Blair's separation agreement.

What about the company's RIF plan? To paraphrase the Court's decision, "What plan?" In the Court's view, this was nothing like a "blueprint" or "objective plan" for a reduction. Instead "the shedding of employees appears to have been chaotic, occurring in fits and starts" with "neither a defined beginning date for, nor a clear plan for the execution of," the RIF.

Because of the lack of objective criteria for the RIF and the age-based comments of an apparent decision-maker, the Court found a genuine issue of fact, and remanded the case for trial.

But what about the hostile environment claim? Here the company prevailed. The Sixth Circuit agreed with the district court that there was no evidence that the supervisor's comments, even if made, interfered with, or were intended to interfere with, Blair doing his job.

Lessons Learned
RIFs are a part of economic life. In some industries they come even more frequently than in others because of the cyclical nature of the product or service being offered. They need to be handled carefully and thoughtfully.

Of course, terminating employees strictly by length of service is one way to handle these situations, and a safe way at that. But the law doesn't require it (although union collective bargaining agreements may) and often a company would be faced with keeping less productive employees at the expense of harder working ones by following such a plan.

If a company wishes to use other criteria it may -but spell them out in a plan that has been given some thought. Attendance records, skills and abilities, disciplinary records and similar non-discriminatory business reasons are all sufficient to support termination decisions, even if they affect employees who fall into one or more protected categories.

Less objective criteria, such as attitude, customer relations, potential for promotion and the like are a lot more difficult to establish, and so a lot trickier to rely on, but still lawful if used carefully. Using totally subjective criteria, like a supervisor's gut reaction, an employee's popularity, and similar factors, is playing with fire. If something can't be quantified, it's hard to convince a judge or jury that it was real.

If your company is faced with a cutback give careful thought to a number of factors, including what you are going to call it. For example, not all cutbacks are layoffs.

A "layoff" is a term that implies a continuing relationship with the company, and a likelihood that the employee will be called back when work picks up. If that's not what you intend, better to term the action a "termination for lack of work." That truthfully signals to the employee the employment relationship is over, and any future employment will be based on a new application as a new hire.

Similarly, the criteria you end up using should be rational, business-based, and -if you're in doubt about it -reviewed by counsel.

For more information, contact the author, a partner at Fisher & Phillips, at mmitchell@laborlawyers.com or 504-522-3303.

Finding that a supervisor's comments about an employee's age were admissible circumstantial evidence, and that his employer's reduction in force plan was not a plan" at all, an appeals court has reinstated the claim of a 57-year-old employee, who had been let go in a Reduction in Force (RIF) that affected over 90 employees.

Richard Blair had worked as a sales engineer since 1986 for Henry Filters Inc., a manufacturer of industrial filtration systems. In 2001 the new owner of Henry Filters, Durr Ecoclean, decided for business reasons to consolidate the sales force of Henry Filters with two other companies it owned, resulting in a cut back among the sales staff. Blair was one of the employees let go, and believed it was because of his age.

To establish a claim under the Age Discrimination in Employment Act, an employee must show that he is in the protected age group (40 or older), qualified for the job, suffered an adverse employment action such as termination, and was singled out for the action "because of age."

If the employer can articulate a legitimate business justification, the employee must show that the reason given is a pretext. Under typical circumstances employees terminated because of a reduction in force face a fairly heavy burden in establishing that their selection was based on age, since the terminations will have involved other employees as well, and are almost always a legitimate business justification.

In this situation Blair offered as proof of age discrimination the actions and statements of his direct supervisor. A vice president of sales took Blair off a profitable account with Ford Motor Co., and assigned him to a far less productive account with General Motors. The reason? According to the lawsuit: Blair was too old.

Ford buyers were younger and interested in activities like mountain biking -coincidentally, so was Blair's 33-year-old mountain biker replacement. The VP of Sales also threatened to fire Blair if he told anyone about the real reason for the reassignment, according to Blair's allegations.

Finally, the VP of Sales also supposedly made derogatory remarks about Blair's age, including calling him "the old man" at sales meetings, and asking others at a meeting with GM's purchasing department whether "the old guy" could make it up the stairs. Maybe not, but he made it to the courthouse in pretty good shape, filing suit in federal district court in Michigan claiming both age discrimination and a hostile work environment.

In its defense Henry Filters argued that Blair was one of scores of employees let go. In fact, the employee workforce shrank from 143 to 52 during the period 2001 to 2003.

Based on that, and on the company's argument that the VP of Sales did not in fact have the authority to terminate Blair, the district court dismissed Blair's claim of age discrimination, and also found no evidence that the age-related comments created a hostile environment, even if they were made.

The Decision
On appeal the U.S. Court of Appeals for the 6th Circuit saw it differently. Finding that the supervisor's statements were not direct evidence, they nonetheless created a question of fact as to whether Blair's age played a part in the company's decision to terminate him.

As to the business justification of a RIF? Blair should be entitled to try and show that it is a pretext.

As to the district court's finding that the VP of Sales didn't fire Blair at all because he didn't have the authority to do so, the Court noted that, according to the evidence, the vice president frequently threatened to fire salespeople without any contradiction from officials above him, and that he actively participated in hiring and firing decisions.

The VP of Sales, who referred to himself as "the Terminator" according to the Court, was the one who telephoned Blair with the news