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JOB CITES: Man replaced by machine sets scary precedent

Jerilyn Jacobs

This year, July 20 was a day that came and went seemingly unworthy of note in the world of employment law.

No Supreme Court decision was issued and no new federal employment measure was signed into law.

An unpublished, two-page decision was rendered by the Eleventh Circuit, however, that may someday cause July 20, 2011 to be looked back upon as the very first day of a dark, bleak future.

Sound ominous? It’s meant to. Because, the following tale is best read if you first imagine the type of future portrayed in science fiction movies, especially the type set just a few years in the future in a large metropolis that may or may not be near you (the case below also closely mirrors a lesser-known Spencer Tracey and Katharine Hepburn romantic comedy, but I digress).

Like all good science fiction movies, Gortemoller v. International Furniture Marketing Inc., 434 Fed.Appx. 861 (2011), starts inauspiciously enough. Mr. Gortemoller was a furniture store employee who was 49-years old when he was hired by International Furniture Marketing Inc. and Standard Furniture Manufacturing Company, Inc. in 1996. He first served as the import merchandising manager, and his role was to select the furniture designs, with the input of sales personnel.

He later was promoted and given the dual title of vice-president of IFM and president of IFM–Asia. In this new role, he was responsible for creating the company’s imported lines from scratch. To do this, he had to provide research to the designers, transmit the designers’ renderings to the manufacturers, review and modify samples, ship the furniture to locations throughout the United States, and gather and assess customer feedback. The process, from conceptualization to the filling of customer orders, could take as long as 24 months.

With Gortemoller at the helm, sales and profits trended downward, with some spikes of stronger performance. In August 2007, the company terminated his employment. He was told that his services were no longer needed because the line had become “stale.”

Gortemoller was replaced by something that some might describe as younger. However, it was not a younger individual who took on his responsibilities, but rather, a newly-designed computer program.

Pursuant to the program, designers were given all assignments via a website. The website also provided all the data needed to make the furniture. The designs were then submitted to the computer program, which was then made available for comments by the marketing, manufacturing and sales personnel. Customer feedback was also entered into the program.

The computer program went live two months after Gortemoller’s employment was terminated and, just as one might expect the nightmarish movie plot to unfold, the company claimed the computer program accomplished, with greater efficiency, what Gortemoller and his entire merchandising department used to be able to do.

Gortemoller brought a claim of age discrimination under the ADEA. Absent direct evidence, Gortemoller had to establish a prima facie case by the indirect method, which meant that he had to show all of the following: (1) that he was over 40, (2) that he had been subjected to an adverse employment action (such as the termination of his employment), (3) that he had been qualified to do his job, and (4) that he was replaced by or otherwise lost his position to a younger individual.

The Eleventh Circuit noted that only this last factor — whether he was replaced by or otherwise lost his position to a younger individual — was at issue. As to this point, Gortemoller argued the employee who oversaw the computer program, who was an individual in his mid-30s with an IT background, was his replacement. The court disagreed, holding that it was the computer program who replaced Gortemoller, not the younger man who oversaw it.

Because Mr. Gortemoller was deemed to have been replaced by a “what” instead of a “who,” he could not establish a prima facie case. His case was dismissed.

Thus, with virtually no fanfare, the advent of the age when employees can be replaced by machines has arrived. No employment protection has been afforded, as of yet, to those replaced by automation. But rest assured, should machines ever threaten the jobs of politicians, lawyers or lobbyists, we can expect prompt action. We will just have to wait and see how the future holds.

Jerilyn Jacobs, is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. She is available at 414-277-8500 or via email at jerilyn_jacobs@gshllp.com.

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