Finally get that promotion? Get exclusive content, tips and tools to help you excel.
Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
A Puerto Rico federal court decided that a retail employee who lost her job in a downsizing did not suffer age discrimination because she could not show that her job duties were taken over by a younger person and that her employer was able to show a legitimate business need for its actions.
Yolanda Rivera had worked as a Cosmetics Counter Supervisor (CCS) at a JC Penney store for 19 years. Her job involved selling products, directing sales strategies and promotional events, identifying promotional opportunities, merchandising inventory, reporting sales performance and volumes, training and supervising sales associates, as well as overseeing the customer service process.
On May 20, 2012, Rivera was notified that pursuant to a restructuring plan, her position would be eliminated and that she would be laid off for not achieving a $300,000 annual sales target that year. She was age 51 at the time.
Believing that her age was the underlying reason for her discharge, she sued Penney’s for age discrimination under federal and commonwealth law. Penney’s asked the court to dismiss the case at an early stage.
Evaluating her claim, the court said that she could make out a viable case by demonstrating that: (1) she was at least 40 years old at the time of the firing; (2) she was qualified for the position that she had held; (3) she suffered an adverse employment action; and (4) Penney’s subsequently demonstrated a continuing need for those services by hiring a younger replacement employee.
Applying those criteria to her evidence, the court agreed that she had shown that she was over 40 years of age at the time of her dismissal, that she was qualified for her position, and that JC Penney nevertheless terminated her.
Her evidence of being replaced by a younger person, though, was less strong: the only evidence in the record concerning the fourth element of her case was her own deposition, declaring that she was informed by her former co-workers that her replacement, Yaritza Betancourt, was doing what she used to do, namely, selling products at the make-up counter.
The court found this evidence to be problematic: The statement about Betancourt was inadmissible hearsay, the court said, and did not demonstrate that Rivera’s job duties were reassigned to her replacement. On this point, there was no evidence of Betancourt’s job skills and whether they were roughly equivalent to her own.
Penney’s said that Rivera's replacement was hired as a part-time sales associate with no managerial or supervisory duties, in contrast to Rivera’s position, which had involved tangible supervisory tasks, such as employee training and merchandising inventory.
“Given that the replacement was not hired for the same position held by Mrs. Rivera while working for JC Penney, [she] fails to meet the fourth-prong of her prima facie case,” the court declared.
Also, the court accepted Penney’s non-discriminatory, legitimate reason for Rivera's discharge: a business reorganization resulting in staff reduction. As part of this streamlining process, JC Penney decided to eliminate all CCS positions whose assigned counters did not reach annual sales of $300,000 during the previous year. Because Rivera's counter did not meet this goal, her position was eliminated, and her duties were distributed between a new sales associate and the current cosmetics manager. It follows, the court said, that Rivera's termination was a result of sound business judgment, rather than a discriminatory motivation.
The court dismissed her age discrimination claim with prejudice.
Otero v. J.C. Penney, D. P.R.,Civil No. 13 - 1467 (JAG) (Jan. 22, 2015).
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Become a SHRM Member
SHRM’s HR Vendor Directory contains over 10,000 companies