A Scout Is Suing the Minnesota Twins for Age Discrimination

Howard Norsetter, the Minnesota Twins’ international scouting coordinator, was fired at the end of the 2017 season. The termination came as a shock, both because of Norsetter’s long tenure with the team – he was first hired by Minnesota in 1991 – and also because of his record whilst working for the Twins. Norsetter is most notable for being the scout who discovered and signed stars like Justin Morneau, but the sheer number of legitimate major league players he uncovered during his career is remarkable. Norsetter signed Grant Balfour, Liam Hendriks, Max Kepler, and Byung Ho Park, among more than 25 major leaguers. John Sickels posted an interview with Norsetter from 2010 in which he demonstrated a sharp baseball mind.

And even after Norsetter was let go, the Twins continued signing players he’d found and recommended, including Kai-Wei Teng. In other words, Norsetter, who lives in Australia, is undeniably good at his job. The Twins evidently agreed, saying his termination wasn’t performance related. Norsetter was later hired for a lesser position with the Philadelphia Phillies.

Norsetter, however, says he now knows why he was fired. Last week, he sued the Minnesota Twins, alleging that his termination was the result of illegal age discrimination. Minnesota is one of the many states which doesn’t make court records publicly available online, though you can find the docket here. Baseball Prospectus editor-in-chief Aaron Gleeman was good enough to post a good portion of the complaint on Twitter for us to review, and to provide FanGraphs with a copy of the full document.

Howard Norsetter, a longtime scout and international scouting director fired by the Twins last year, has sued the team for "age discrimination in employment practices." Norsetter is 60 years old and lives in Australia.

Some excerpts from the complaint, filed in Hennepin County. pic.twitter.com/xqK1FGoEMp

— Aaron Gleeman (@AaronGleeman) October 24, 2018

According to the Complaint, Norsetter was fired as part of a youth movement implemented across the Twins front office. And Minnesota hasn’t exactly been bashful that they’re going young on the field, as well, hiring 38-year-old Rocco Baldelli as manager, 33-year-old (at the time of his hire) Derek Falvey as chief baseball officer, and 44-year-old (at the time of his hire) general manager Thad Levine. In fact, the Twins actually cited youth as one reason for firing manager Paul Molitor after the 2018 season.

Perhaps it makes some intuitive sense from a business perspective to hire younger talent, but the law takes a dim view of age-based hiring and firing practices. In 1967, Congress passed the Age Discrimination in Employment Act (“ADEA”), a statute which makes clear that firing someone because of their age is illegal. Section 621 of the ADEA explains the purposes of the law.

(a) The Congress hereby finds and declares that-

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

In other words, Congress passed the ADEA because employers were replacing employees based on their age and not their capabilities. If Norsetter was in fact fired simply because the Twins wanted to hire younger people, it would be a violation of the ADEA. And Norsetter alleges in his complaint that his firing wasn’t an isolated incident; nine other front-office employees older than age 50 were terminated in favor of younger hires, including pro scout Wayne Krivsky and several others in the scouting department. Several other employees over 55, says Norsetter, were demoted and replaced with younger hires.

If, in fact, age and not performance was the primary impetus for the Twins’ front-office purge, the ADEA would almost certainly prohibit it. Under section 623 of the ADEA,

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

This naturally raises the question of how you can prove that a person was fired or demoted as a result of their age. Legally speaking, the test a court applies is a “but-for” standard: would the employee have been fired but for their age? This is a higher threshold than it seems. For instance, in typical protected class litigation under the Civil Rights Act (which includes Fair Housing Act and Equal Employment Opportunity Act claims, among others), whether or not the adverse employment action was based on race, for example, need only be shown as a “motivating factor.” In fact, under existing precedent, it’s possible to show that an adverse employment act was illegal only if it had a discriminatory effect, rather than a discriminatory motive.

Not so with the ADEA: a plaintiff must plead and prove that the sole reason for the adverse action was age discrimination. Even in civil court, where the standard of proof is a preponderance of the evidence (more likely than not), that’s a really difficult fact to prove, because it’s nearly impossible to show what was in another person’s mind when they made their decision. So it’s perhaps unsurprising that a comprehensive study of ADEA claims found that employers won two-thirds of cases examined.

Maybe for that reason, Norsetter’s attorney, Steven Uhr, didn’t include an ADEA claim in his lawsuit — more than a minor departure from typical practice in these cases. Interestingly, Uhr has a bit of a colorful history himself. He once brought a nationwide antitrust and anti-racketeering lawsuit alleging a national conspiracy to fix happy-hour prices, part of a career-long series of cases he’s filed on the issue. He also practiced law under a suspended license and brought several cases of questionable merit.

In any event, Uhr and Norsetter proceeded under the ADEA’s Minnesota state-law analogue, the Minnesota Human Rights Act. The relevant portion of the Minnesota Human Rights Act, Section 363A.08, can be found here. Subdivision 2 of that section says this:

Except when based on a bona fide occupational qualification, it is an unfair employment practice for an employer, because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, familial status, membership or activity in a local commission, disability, sexual orientation, or age to:

(1) refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or

(2) discharge an employee; or

(3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.

If that looks similar to the ADEA, it’s by design: most states have a human-rights statute that tracks similar federal discrimination law. Minnesota’s law is also applied similarly to federal law, though to date it remains an open question regarding whether the federal “but-for” causation test also applies to claims under Minnesota state law. Interestingly, though Minnesota’s law is somewhat broader than the federal law, Minnesota’s government has had problems complying with that law, conceding systemic age discrimination on multiple occasions.

The interesting part here is the reference to bona fide occupational qualifications. We’ve discussed those before. A BFOQ is a convoluted way of saying that an employer is allowed to exclude people on the basis of criteria like age or gender if being a specific age or gender is required to do the job. Race can never be a BFOQ.

So is age a bona fide occupational qualification for a scout? It’s possible — vision, for example, changes for the worse as we age — but seems unlikely, as Norsetter was still finding and signing big leaguers right up until the end. (You can read more about the federal regulations governing BFOQ and age here.) The more interesting question is whether it can be proven that Norsetter was, in fact, fired due to his age and not another reason. For example, the Twins may have decided they wanted more analytically focused scouts, regardless of age. Those hires would probably be younger, yes — but since disparate impact standards are generally not available to age-based employment discrimination claims, Norsetter would probably lose his case on that basis. On the other hand, maybe the Twins really did want to go younger across the board; Norsetter says he offered to work for the Twins in a lesser role, but was refused.

It’s hard to say that Norsetter is likely to win his case, if for no other reason than the steep hill any employee has to climb to prove age discrimination. Does his complaint contain enough to raise an issue? Undoubtedly. But at this point, given the myriad other reasons the Twins could provide as explanations for why they terminated Norsetter, the safe bet here is on the Twins. Not every unfair personnel decision is illegal.