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Introduction
It is important to note that the case involves an HR director faced with an employee who is about to retire but wants to continue working for five more years. The problem is that the worker, Les Partain, was given an outstanding review to boost his retirement plan, which he did not deserve from a legal standpoint. Such a high review made Les willing to continue working, but the HR director wants the employee to retire to replace him with a better one. The case illustrates a violation of the law against discrimination on the basis of age.
Legal Viewpoint: Discussion
From a legal standpoint, the Age Discrimination in Employment Act (ADEA) of 1967 and its subsequent amendments are relevant. What the HR Director did was an act of kindness and care as a human being, but it was positive discrimination against the worker from a legal perspective. Positive discrimination “is a form of discrimination that favors someone by treating them differently in a positive way. An example might be an organization appointing someone … into a role without considering … skills” (Robertson, 2017, para. 4). Under the ADEA, it is illegal for the employer to discriminate a worker due to his or her age, which is specified as anyone aged 40 or older (Martocchio, 2018). Therefore, legally, there are two possible ways to comply with the law and resolve the issue.
Firstly, it is critical for the HR Director to perform her responsibilities to the company, which far outweighs the relationship between Les and the manager. Since Les is an average worker but not bad enough to fire him, it is possible to refuse the extension when requested. Les, as an employee, can ask the HR Director for a five more-years extension, which needs to be approved by the HR Director. Therefore, protecting the interest of the firm can be done within the existing resources available to the HR Director. In order to avoid any possible conflict caused by Les, the HR Director should explain to him that there are better candidates and that his attitude and desire are appreciated.
However, secondly, the HR Director should consider the Older Workers Benefit Protection Act (OWBPA). The manager should consider offering Les to sign the OWPBA since “the ADEA does not prohibit employers from favoring older workers, and explaining the reasonable factor other than age affirmative defense” (Lipnic, 2018, para. 37). In other words, what the manager did can be considered as legal under the OWPBA, but requires Les’s cooperation. In order to proceed with this option, it is critical for the HR Director to have an open and honest conversation with the employee about his performance and errors made by the director. If an agreement is reached, Les can sign the OWPBA to continue receiving maximum benefits, whereas the HR Director is not forced to compromise her position.
Avoiding the Current Predicament
The current predicament of the HR Director put her in a risk zone of legal litigation from Les in accordance with the ADEA due to being positively discriminated against, which is a form of discrimination nonetheless. LaConya, the HR Director, should have provided an objective and honest evaluation of Les’s performance by putting the notions of kindness and care to the side. In other words, LaConya was not acting in the best interest of the company by providing ‘fake’ reviews to Les, and she was discriminating against the worker at the same time. She should have provided Les with honest, evidenced, substantiated, and objective reviews reflective of the reality. Maximizing the retirement benefits should not have been a goal or priority for LaConya. In other words, honesty and transparency by the HR Director would have been the most legally and humanely correct path of action instead of lying to a worker and unfulfilling her duties to the company.
Evaluating Correctly
If LaConya begins to evaluate Les in the manner she should likely have been doing all along, and she will likely face a legal lawsuit from Les. The basis for the litigation is discrimination which is evident from the situation LaConya is in since there is a pattern of inconsistency in evaluations. In addition, there is a strong incentive for Les to file a lawsuit against LaConya since he is about to retire and he considers himself a good employee. According to the ADEA, LaConya is obliged to treat all workers equally, irrespective of their age (Martocchio, 2018). The ‘fake’ reviews do not constitute fair and equal treatment of workers, and it will be quickly and evidently revealed as soon as the HR Director begins to evaluate Les as she was supposed to do from the start.
Conclusion
In conclusion, the case demonstrates how one’s job responsibilities and obligations must always come before feelings of care and kindness. LaConya, as the HR Director, failed to conduct her responsibilities duly and diligently by positively discriminating against Les, which is a direct violation of the ADEA. However, the law provides an opportunity to favor older workers under the OWPBA, which requires an employee’s agreement and waives his or her ADEA rights.
References
Lipnic, V. A. (2018). The state of age discrimination and older workers in the U.S. 50 years after the Age Discrimination in Employment Act (ADEA). Web.
Martocchio, J. (2018). Human resource management (15th ed.). Pearson.
Robertson, J. (2017). Positive action or positive discrimination – What’s the difference? University of Dundee. Web.
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