Economic downturn, reductions in workforce, and costs of implementing accommodations for employees can constitute reasons justifying an employer’s actions to downsize its headcount. However, the pandemic has unquestionably carved out remote work as reasonable accommodation for employees that typically fall within a “protected class.” In the ongoing string of recent departures from a Maine-based radio group, Morrison Mahoney Partner Jennifer A. Rymarski, continues her commentary involving the Portland Radio Group, a subsidiary of Saga Communications. The Press Herald continues to report on departures from the radio group. Most recently, on June 9, 2020, the paper reported that the company and Bob Adams, its President and General Manager, had parted ways. Adams’ departure follows that of Randi Kirshbaum (66), who claims she was terminated after she refused to return to in-station work during the pandemic. Her refusal to return was supported by a physician’s note and the fact that Kirshbaum had purportedly successfully worked from home during the pandemic. The company claimed it had not terminated her, rather asserted she had been laid off due to lack of compliance with an agreement. Kirshbaum’s termination followed that of John McDonald (aged 76) who took time off partly due to his concerns about coming into the station, and Ken Altshuler (67), who was told he was being dismissed as part of financial restructuring. Adams’ exact age is not known, yet he was cited as working in radio for 27 years, thus it is likely that he too, is in a protected class of workers according to/under the Age Discrimination and Employment Act and Maine Human Rights Act.
Kirshbaum’s counsel has indicated that he will file a complaint with the Maine Human Rights Commission for in part, age discrimination. While the company has asserted no wrongdoing related to any of these three former employees, Kirshbaum’s counsel seems to have honed in on a potential pattern of conduct.
Certainly, employers can successfully defeat discrimination claims provided they can show a legitimate, non-discriminatory reason for the company’s actions. The ability to assert such a defense has not necessarily changed with the pandemic. Setting aside the Portland Radio Group’s defensive assertions in these cases, for those employees who may suffer from comorbidities, whom may be pregnant, or of a certain age that would qualify them as “high-risk,” are also more susceptible to lay-offs.