A Chief Nursing Officer (CNO) is alleged to have stated that a younger nurse could “dance around the older nurses.” Not hard to imagine that such a statement would raise the hackles of many nurses over age 40, but do comments like that mean that the hospital discriminated against one or more nurses on the basis of their age when the nurses were discharged or resigned? That is the question facing Montrose Memorial Hospital after the Equal Employment Opportunity Commission (EEOC) filed an age discrimination lawsuit against the Western Slope hospital last Friday.

EEOC Cites Numerous Age-Related Comments

In its complaint, the EEOC alleges that Montrose Memorial Hospital’s CNO, Joan Napolilli, made various age-biased statements to charging party Katherine Casias and other nurses. Casias began work for the hospital in 1985 as a licensed practical nurse but then earned her degree cum laude as a registered nurse (RN). The alleged comments attributed to Napolilli include:

  • a younger RN could “dance around the older nurses;”
  • younger nurses are “easier to train” and “cheaper to employ;”
  • Casias was not “fresh enough” and was chastised for not smiling or saying hello enough;
  • referring to Casias as an “old bitch;”
  • older workers at the hospital were “a bunch of monkeys” and she’d “like to fill the hospital with new nurses and get rid of all the old ones;” and
  • telling a nurse supervisor to “work that old grey-haired bitch into the ground” and to work her “long and hard until she quit or got fired.”

The complaint also alleges that Nurse Manager Susan Smith told an RN that “you’re getting too old for this job.”

If proven to have actually been said, comments expressing an aversion to workers over 40 and a preference for younger workers can be direct evidence of age discrimination under the Age Discrimination in Employment Act (ADEA).

Leniency Toward Younger Nurses

Casias’s long-term employment record appears to have been stellar. The complaint states that she had never received a below-average performance evaluation or any formal discipline in her 27 years at the hospital. She also was appointed to numerous positions such as Trauma Coordinator, Sexual Assault Task Force member, and Sexual Assault Nurse Examiner.

The hospital apparently points to alleged policy violations and performance deficiencies to support its termination decisions of Casias and other older nurses. The EEOC, however, alleges that younger nurses engaged in similar or even more egregious conduct than Casias and the other older nurses, without the younger nurses being discharged or disciplined. According to the complaint, the hospital documented nearly one hundred patient complaints and additional co-worker complaints about rude or unprofessional conduct by nurses during an almost four-year period between 2010 and 2014. Yet during that same period, the hospital allegedly did not terminate any employee under the age of 40 for rude or unprofessional behavior.

Avoiding the EEOC’s Wrath

The EEOC’s lawsuit has just begun and none of the allegations have been proven yet so we don’t know if age discrimination actually occurred at the hospital. This lawsuit speaks to the EEOC’s ongoing efforts to address claims that protect workers in collective actions. These lawsuits allow the EEOC to affirmatively gain notoriety by issuing press releases. https://www.eeoc.gov/eeoc/newsroom/release/9-9-16a.cfm.

Such claims also vindicate the public purpose of the agency and promote the rights secured to employees by federal law. It is hard to fashion an argument that the EEOC oversteps its bounds by bringing these collective actions, but employers should be very concerned about the high risk associated with class-based discrimination claims.

If you’d rather not find yourself in the hospital’s position defending a lawsuit in federal court, be proactive about avoiding age discrimination in your employment decisions. Make sure you review how you’ve treated other employees, especially younger workers, for similar misconduct before disciplining or firing employees over age 40. And train your supervisors and managers not to make age-related comments for any reason. Focus on the employees’ job performance, not their age, and you’ll have a better chance of avoiding the EEOC’s scrutiny.