We all know that under Title VII of the Civil Rights Act of 1964 as amended by the Age Discrimination in Employment Act of 1967 (“ADEA”), you can’t be fired just because of your age. Employers can’t push you out simply because you’ve hit a certain birthday. That’s called age discrimination.
But what happens when an employee starts making repeated mistakes on the job? Maybe that older employee’s focus isn’t what it used to be, or the older worker is not as attentive to critical details. Does that shield of age protection still apply if that older employee’s performance starts to slip? Unfortunately for employees, the answer is no.
That’s what happened to Julia McCreight, a longtime employee at AuburnBank, who claimed she was fired because of her age as well as sex. But as the United States Court of Appeals for the Eleventh Circuit held in McCreight v. AuburnBank, No. 22-12577, 2024 WL 4232440 (11th Cir. Sept. 19, 2024), an employee can absolutely be fired for making costly mistakes, even if that employee belongs to a protected class like age or gender. McCreight’s case shows that while employees are protected from discrimination, employers still have the right to hold employees accountable for poor performance—especially when it costs the company money.
In this case, McCreight had been with AuburnBank for over twenty years, working as a mortgage loan originator. But her long tenure didn’t save her from making serious mistakes on the job. One of her biggest errors was mistakenly approving a loan for a borrower who didn’t meet Fannie Mae’s strict criteria. McCreight used an outdated approval letter, even though her supervisor had directed her to use a new form. When the underwriter reviewed the loan, it was denied because the borrower didn’t qualify. But because of McCreight’s letter, the bank was stuck with a risky loan it couldn’t sell to Fannie Mae.
This wasn’t McCreight’s first mistake. According to the Court’s opinion, she had an increasing history of performance issues, including mishandling loans and creating potential conflicts of interest by being involved in her family member’s loan. The approval letter mistake was the final straw for AuburnBank, and it fired her. McCreight argued that her firing was due to her age and gender, but the Eleventh Circuit disagreed, holding that AuburnBank’s decision was based on her performance, not her age or gender.
Critically, it is important to remember that McCreight’s mistakes were clear, undisputed, and documented. Things may have been different had the negative performance evaluations been subjective opinions regarding undocumented issues.
Although this case did not end up working out for the employee, the case provides good insight into a few employment law issues.
What Are “Plus” Claims? (And Why They Matter)
Title VII protects employees from discrimination based on sex, race/color, religion, national origin, gender, gender identity, and sexual orientation. But what if you belong to a subgroup within one of those categories? That’s where “plus” claims. A “plus” claim involves a protected class (like sex or race) combined with another characteristic (like age, having children, or marital status). The law recognizes that employers sometimes discriminate against subgroups within a broader category. For instance, a company might treat older women differently from younger women or Black women differently from Black men. The second add on category in a plus claim does not have to be a protected class.
McCreight’s claim was a classic example of this: she argued that AuburnBank targeted her because she was an older woman. That’s a sex-plus or age-plus claim: discrimination based on sex (being a woman) combined with another characteristic (being over a certain age). The Eleventh Circuit explained, “Sex-plus claims are based on one kind of discrimination—sex—targeting one subclass of a sex” McCreight at 4. The same principle applies beyond sex—discrimination based on a combination of any protected class plus an additional characteristic is actionable under Title VII.
Best Age Discrimination Lawyer Blogs on Point:
- Age Discrimination Is Illegal No Matter How Old An Employee Gets
- It’s Critical To Timely Report Age Discrimination
What Is The Difference Between Plus Claims And Mixed Motive?
Here’s where things get tricky. McCreight also argued that her case was a “mixed motive” case, meaning that her termination was due to a combination of legal and illegal reasons. But the Court clarified that a sex-plus claim and a mixed-motive theory are not the same thing. A sex-plus claim is a type of discrimination claim where sex is a primary factor combined with another characteristic. On the other hand, mixed motive refers to a situation where both legitimate and illegitimate reasons motivated an employer’s decision.
The Eleventh Circuit explained: “Mixed-motive is a theory—not a claim. So, McCreight is right that she did not need to allege a mixed-motive theory in her complaint; all that she was required to allege was that an adverse employment action occurred based on some protected characteristic” McCreight at 6.
In McCreight’s case, she didn’t argue mixed-motive at the right time and didn’t provide sufficient evidence to show that both legitimate and discriminatory reasons played a role in her termination. The court found that she was instead pursuing a single-motive claim—where she claimed that discrimination was the only reason for her termination—and that her case couldn’t survive under that framework either.
Best Employment Discrimination Law Firm Blogs on Point:
- Bringing Discrimination Claims In The Alternative: Was It Race Or Age?
- What Can I Do If My Boss Discriminates Against Me Because Of My Disability And Gender? I Need The Top Disability and Gender Discrimination Lawyers!
What’s The Difference Between Legitimate Business Reasons And Pretext?
When an employer takes action against an employee, they often point to legitimate business reasons for the decision. In McCreight’s case, AuburnBank argued that her repeated errors, especially the loan approval mistake, were the true reason for her firing. The question then becomes whether those reasons are legitimate, or if they’re just a cover (known as pretext) for discrimination.
For McCreight to win her case, she had to prove that the bank’s reasons were just a smokescreen, and that the real reason for her termination was her age and gender. But she failed to provide enough evidence. As the Court explained, “The pretext prong of McDonnell Douglas is just the ordinary summary judgment standard” (McCreight at 9). In other words, McCreight needed to present evidence that AuburnBank’s reasons were false, and that discrimination was the actual cause of her termination. She couldn’t do it because the bank had solid evidence that her mistakes—particularly the unauthorized loan approval—were the real reason. In this case, not only could McCreight avoid admitting the costly loan approval mistake, but she failed to present evidence that the decision maker knew about her age or her complaints of discrimination. On this point, the Eleventh Circuit Court of Appeals held, “Proof of the decisionmaker’s knowledge or awareness of those complaints is also required. … The record does not show that either of the decisionmakers knew that McCreight had complained about sex or age discrimination. To start, both King and Herring deny any knowledge of her internal discrimination complaints. … But “a jury finding that a decisionmaker was aware of an employee’s protected conduct ‘must be supported by reasonable inferences from the evidence, not mere speculation.’” McCreight at 12-13 (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1355 (11th Cir. 1999)).
Best Wrongful Termination Attorney Blogs on Point:
- Yes, You Can Get A Poor Review For Falling Asleep At Work And Leaving Early
- Yes, You Can Be Denied A Job That You Are Not Qualified To Hold
- Yes, You Can Be Fired For Leaving Keys In An Unattended School Bus Without Doing A Kid Check
What Does This Mean For Employees?
Here’s the lesson: Employers can’t fire you just because you’re getting older or because of your gender, race, or another protected characteristic. But that protection doesn’t mean you can’t be fired for legitimate reasons, like making serious mistakes at work – even if those mistakes are due to issues associated with increasing age. Even if you file an EEOC complaint, your employer still has the right to discipline or terminate you if your performance isn’t up to par.
McCreight’s case shows that when employees fail to meet job expectations—whether it’s because they’re slipping due to age or for any other reason—employers can take action. If those mistakes hurt the company financially, the employer has every right to make an employment decision based on performance, not discrimination.
But that can be very difficult for employees to understand the line between age discrimination – wrongful termination and justified firing for mistakes. Navigating claims of discrimination and pretext can be complex, and that’s where an experienced employment lawyer comes in. An attorney can help you gather the right evidence to show whether an employer’s reasons for firing you are legitimate or just a cover for discrimination. At Spitz, The Employee’s Law Firm, we specialize in employment law and have extensive experience handling cases involving Title VII claims, including sex-plus and mixed-motive theories. If you believe you’ve been wrongfully terminated or retaliated against, contact us for a free consultation.
Disclaimer:
The employee’s rights and wrongful termination information provided in this employment lawyer’s blog is for general informational purposes only and should not be taken as specific legal advice regarding employment law, workplace discrimination, or any other employment-related issue. This blog discusses common legal principles related to Title VII of the Civil Rights Act of 1964, which protects employees from discrimination based on race, color, religion, sex, or national origin, as well as other relevant laws such as the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). It also generally addresses protections for employees facing discrimination based on their gender identity, sexual orientation, disability, or veteran status. However, every case is unique, and you should consult with a qualified employment attorney who specializes in workplace discrimination to discuss your specific situation, whether it involves issues related to sex-plus claims, age discrimination, race discrimination, or other forms of unlawful retaliation or harassment.
No promises or guarantees are made about the outcome of your particular case, as employment discrimination and wrongful firing claims depend on a variety of factors, including but not limited to the evidence of discrimination or retaliation based on protected characteristics like race, sex, age, religion, disability, or national origin. If you believe you have been subjected to unlawful discrimination or retaliation in your workplace, contact Spitz, The Employee’s Law Firm for a free initial consultation. Our attorneys are dedicated to protecting employee rights and specialize in addressing claims related to employment discrimination, hostile work environments, retaliation, wrongful termination, and other violations of federal and state labor laws.