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My Boss Fired Older Workers To Save On Healthcare. Can I Sue For Age Discrimination? I Need A Lawyer In Ohio!

| Nov 26, 2014 | Age Discrimination, Employment Discrimination, Wrongful Termination |

Best Ohio Age Discrimination Attorney Reply: Do I have a claim for age discrimination if I was fired because of the rising costs my health care coverage to my employer? Can my boss force me to use Medicare instead of signing up for the employer provided health insurance? My employer terminated me because they said health care costs of older employees were hurting the business; can I sue for age discrimination?

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Health care coverage is a growing concern among employees and employers for a variety of different reasons. For employees, health care coverage is an important benefit of being gainfully employed. Depending upon the health care plan, employees are able to keep provide low cost coverage to themselves and their dependents. For employers, health care coverage is a way to attract highly qualified employees and compete with other businesses for talent in the market place. The obvious drawback for employers is the cost of coverage can grow out of control depending upon the number as well as the age of the employees.

As you are well aware, older employees may experience chronic health issues that require more frequent use of health benefits or costly surgeries. Can an employer use the fact that they have terminated older employees as a way to negotiate lower health care coverage? Do the older employees who are terminated on the basis of the cost of their insurance coverage have a claim of age discrimination?

My boss keeps telling me to go enjoy retirement. My supervisor told me that I’m too old to keep doing my job. My company just fired all the older employees and kept the younger less experienced workers. I was fired because I’m old.

Under the Age Discrimination in Employment Act (“ADEA”), an employer is liable for age discrimination if they “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Terms of compensation and conditions of employment include health care coverage provided by an employer to its employees. Failing to provide healthcare coverage or changing the terms of coverage on the basis of an employee’s age is a violation of the ADEA.

For example, in Tramp v. Associated Underwriters, the employee, Marjorie Tramp, was written up for performance issues and eventually fired after she refused her employer’s demand to use Medicare instead of accepting employer provided health insurance. The employer, wanting to cut costs in order to save money for the company, had contacted insurance company shortly after she was terminated to notify them that they should get reduced rates due to the fact that they had “lost several of the older, sicker employees and should have some consideration on this.”

Tramp filed a lawsuit against her former employer, stating she was fired in violation of the ADEA. The court of appeals, upon reviewing the case, found that the employer’s desire to cut insurance costs can reasonably be found as a proxy for age discrimination. The holding by the Eighth Circuit Court of Appeals is very instructive on this type of claim:

Tramp claims that Associated Underwriters terminated her because her age affected its employee health insurance costs. To establish a claim under the ADEA,”[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). The familiar McDonnell Douglas test still applies in ADEA cases. Applying that test to this reduction-in-force situation, …[Tramp] must first establish a four-part prima facie case of age discrimination. To establish a prima facie case of age discrimination in a reduction-in-force, [Tramp] must show that (1) [s]he is over 40 years old, (2) [s]he met the applicable job qualifications, (3) [s]he suffered an adverse employment action, and (4) there is some additional evidence that age was a factor in the employer’s termination decision. Once [Tramp] establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the employer does so, [Tramp] must show that the employer’s proffered reason was pretext for discrimination.

Here, the first three elements are undisputed. As to the fourth element, and ultimately to prevail on her burden of proving that age was the but-for cause of Associated Underwriters adverse decision, Tramp claims that Gurbacki’s correspondence with the company’s health care provider months before and months after Tramp’s termination provides the additional evidence necessary for a fact-finder to deduce that there was a direct correlation between employee age and the termination decision–that it was the but-for cause of her termination. Gross, 557 U.S.at 177-78. We agree that an issue of fact remains given the record evidence. As noted above, during the summer of 2008, seven months prior to Tramp’s termination, it became apparent to management that its health care premiums were affected by the demographics of its employees. In correspondence with the healthcare provider, Gurbacki wrote: “We have lost several of the older, sicker employees and should have some consideration on this. If you have provided us with your final rates then that is what we will use in our decision.” Then, in August 2008, Hallgren met with Tramp and others and suggested that they utilize Medicare instead of the company’s health care plan. Nearly five months after Tramp’s termination, there is again email correspondence between Gurbacki and the health care provider discussing the high renewal rates for Associated Underwriters. In it, as relevant here, Gurbacki writes, “[s]ince last year we have lost our oldest and sickest employees. . . . Please let me know if this is the best we can do . . . .” Tramp claims that Associated Underwriters’ expected reduction in health care premiums demonstrates that the but-for cause in Tramp’s termination was not poor performance but rather her age. …

Here, it is possible that a reasonable jury could conclude from the evidence that Associated Underwriters believed the two considerations were not analytically distinct. EEOC v. City of Independence, Mo., 471 F.3d 891, 896 (8th Cir. 2006) (“The key is what the employer supposes about age . . . .”). This is not to say that discrimination occurred here, but that summary judgment prematurely disposed of the issue. We agree with the district court that at the very least Gurbacki’s choice of words–questioning whether “this is the best we can do” after pointing out that they had lost their “oldest and sickest employees,” and how Associated Underwriters expected a rate decrease “from the group becoming younger and healthier”–was crude and perhaps an insensitive way to describe the composition of the then-current employees to the health care provider. But, there remains a possibility that these statements could also be a manifestation of discriminatory intent in the process used by Associated Underwriters to be rid of its older (and/or oldest) employees in general. The emails are open to interpretation and on a motion for summary judgment, they must be viewed in the light most favorable to Tramp.

If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”

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