Sloppy company communication leads to age discrimination lawsuit

Cleveland Cavaliers management has put itself in a treacherous legal and financial position with its alleged decision making and behavior that is a catalyst for an age discrimination lawsuit filed against the organization by a former assistant coach.

Jim Boylan, 63, a longtime NBA assistant, and his attorney filed the suit after his contract option was not picked up for the reason he believes with certainty was behind the decision by team owner Dan Gilbert and General Manager Koby Altman.

At issue for Boylan is a voicemail left for him by recently-terminated head coach Tyronn Lue, in which Lue stated Altman told him that “they’re not gonna pay that kind of money for three assistants on the bench. He wants to go younger in that position and, you know, find somebody who’s a grinder and younger in that position” according to a Brian Windhorst report with ESPN.

The Cavs chose not pick up Boylan’s contract and then promoted younger assistants and hired 40-year-old Terry Nooner.

It’s assumed chief executives would not make such seemingly uneducated mistakes yet there are always exceptions, always people who despite their education and success, are failed by their thinking and actions.

“Telling an employee that he or she will not be retained because of their age is highly unusual because this is generally considered to be direct evidence of age discrimination,” said attorney and Chair of the discrimination and retaliation practices Eric Bachman of Zuckerman Law, a firm in Chevy Chase, Md.

Bachman doesn’t represent the parties yet has won 9-figure and 8-figure discrimination settlements.

“Often it may be difficult to prove that the employer actually made these statements, but according to the ESPN article, the employee says he has a voicemail of a team representative making these statements, which could be strong evidence if correct,” said Bachman.

The Cavaliers are angry, feel attacked and are expressing it with highly emotional, inflammatory language in an attempt to defend and discredit the claim, using words “frivolous”, “outrageousness”, “egregiousness”, “extortion attempts” and “shameless cash grab.”

While that might be authentic or typical attempts to influence, will such language prove to de-escalate or escalate the negative emotions of the employee who feels betrayed, violated and harmed?

How will Boylan and his attorney’s response change towards the employer, named parties and the defense attorney team, hearing such rhetoric, mocking their claims?

Cavaliers leadership and its attorneys will have extreme difficulty to overcome to exonerate itself or limit the amount of the settlement.

“I’d have to see the details of the contract option to be able to give a meaningful response,” said Bachman. “However, even if a contract option exists, it is generally unlawful for an employer to rescind the option if the motivation for doing so was based on the employee’s age. I cannot provide any legal advice on this matter but in general the employer will want to present evidence that it made the decision based on a legitimate factor other than the employee’s age. Given the voicemail that the employee claims to have, this may be a heavy lift for the employer,” he said.

While the legal reality would seem to provide comfort for the plaintiff’s (Boylan) case, the process might not be as simple, sure and painless as hoped. Boylan and his attorney could expect to face some ugly allegations.

“An employer will usually try to show that it decided not to renew the employee’s option for a reason besides age: for example, documented poor performance by the employee, complaints against the employee, etc.,” said Bachman.

If the Cavaliers have proof, they could win their argument or court or maybe more likely, mitigate damage.

However, regardless of the outcome, the organization has likely revealed leadership character flaws and damaged its reputation, an unanticipated problem, with potential new coaching hires or current employees.

That goes for both the Cavaliers and the business interests of owner Dan Gilbert. Older employees of both who lose their employment might now question reasons for lost jobs and benefits, which could incur more legal claims.

What can chief executives learn from the Cavaliers dilemma?

Have greater self awareness of your thinking and be honest with yourself about it, especially if it breaches ethics and law.

Be careful about having employees be the messenger for sensitive information regarding employment and termination. If you are entrusting others to communicate for you, then be clear about what exactly you wish communicated and not communicated and how.

Document planning for communication down through the chain of command and make sure there is absolute understanding and clarity for the messengers.

If you made mistakes along the way and find yourself in a dispute or crisis, don’t overreact, especially in court documents or the media with over-the-top, attack, inflammatory language sure to incite more aggression and cause you as much harm as prevent it.

Michael Toebe is specialist for disputes, crisis communication, crisis management and reputation adversity leadership, who also regularly writes on disputes, crisis and reputation on Chief Executive, Corporate Board Member and Medium, Quora, LinkedIn and Twitter.