Why Age Discrimination Must Be Avoided by Employers in Any Situation
Age discrimination is an adverse work treatment of an employee based on a class or category that the employee belongs to—employees over age 40—rather than on the employee’s individual merit.
Age discrimination is unlawful in any phase of employment including job postings, job descriptions, interviews, hiring, salaries, job assignments, merit increases, performance management and evaluation, training, disciplinary actions, promotions, demotions, benefits, employment termination, and layoffs.
Any action that an employer takes that adversely affects a disproportionate number of employees over 40 is also age discrimination. In fact, according to the U.S. Equal Employment Opportunity Commission (EEOC), “the ADEA allows employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or younger.”
Practicing Non-Discriminatory Behavior During a Layoff
To provide an example of the need to avoid age discrimination, in a layoff situation, in a mid-sized manufacturing company, the most significant discussion centered on how to do the layoff properly and legally. The employment law attorney was extremely concerned that no disparate treatment occurred in the matter of who was selected for the layoff. (A layoff is definitely one of the instances in which you will want to hire an employment law attorney so you act legally.)
This meant that the classifications of every potentially laid-off employee had to be checked for possible discrimination. This meant that the employer had to check the ages of employees, their race, gender, and all of the areas of potential discrimination to make certain that no one class of employee was more adversely affected by the layoff decisions.
Because many of the employees were long-term people, age discrimination was the biggest concern. Age discrimination lawsuits, while not as frequent as they were from 2008 to 2012 when the economy was so bad, are still high and going higher rapidly in the new environment of employee awareness, front page news stories, the lightning spread of information on social media. Employers do not want to become involved with the EEOC.
At the end of the story, to avoid even the appearance of age discrimination in the layoff, a younger white male employee was selected for the layoff. The company retained an over age 50 male employee instead.
The company also decided to eliminate a whole department. Most of the employees in the department were over age 40. But, by eliminating the department, age discrimination culpability was also avoided.
The ADEA also prohibits age discrimination among employees who are older than 40. As an example, employers may not discriminate against a 60-year-old employee in favor of a 50-year-old employee.
The ADEA and its age discrimination prohibition apply to all private employers who have 20 or more employees and to Federal, state and local governments. Age discrimination is also prohibited in employment agencies and labor organizations.
More Facts About Age Discrimination
In the hiring process, requiring the age of applicants must only be for a “bona fide occupational qualification.” This means that the employer must demonstrate that age is a reasonable question essential to the operation of the business.
Employers also need to steer clear of the more subtle forms of potential age discrimination. While you may not choose to ask for age or date of birth on your employment application, doing the math based on when your prospective employee graduated is potentially discriminatory. You would discriminate if you used this information to eliminate a candidate.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to employees over 40. There are exceptions available in certain circumstances as long as the cost of insuring older employees is the same as insuring younger employees.
Age Discrimination Prevalence
According to the EEOC, “It is difficult to measure with any accuracy the prevalence of discrimination in the workplace. One indicator of the prevalence of age discrimination is based on the research of the perception of age discrimination by older workers in surveys. Another indicator is age discrimination claims. Most discriminatory and harassing conduct is unreported which means charges filed with federal and state enforcement agencies represent a fraction of the likely discrimination that occurs in the workplace.”
“Overall, EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces. The agency reduced the workload of pending charges by 3.8 percent to 73,508 — the lowest pending charge workload in three years. The agency responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries in field offices, reflecting the significant public demand for EEOC’s services. EEOC has previously released the fiscal year 2016 highlights.”
The Bottom Line
Too many older Americans face age discrimination based on stereotypes and outdated assumptions about age and the capability to work. People tend to think of older workers as slower, mistake-prone, and generally worn out. So, age discrimination is too common and too accepted in today’s workplace. Employers need to become much more conscious of the potentially devastating effects of practicing even subtle discrimination based on an individual’s age.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
Join Facebook group: I Need A Discrimination Lawyer