Age discrimination lawsuits on the rise

by on December 15, 2008 · 0 Comment POSTED IN: HR Info Center

Strategies for avoiding a courtroom tangle

If your company hasn’t been hit with an age discrimination lawsuit, it could be just a matter of time. But don’t despair. HR can help contain the wave of disgruntled workers age 40 and up who are suing their employers under Age Discrimination in Employment Act cases.

According to the Equal Employment Opportunity Commission (EEOC), age discrimination is the fastest-growing complaint category, today representing 20% of all charge filings the agency receives. Age discrimination complaints increased 23% from 14,141 in 1999 to 17,405 in 2001.

A big increase in ADEA lawsuits

What’s driving this trend? Several factors: Foremost, the economy. Many people nearing retirement have watched their investment portfolios shrink dramatically after the market began plummeting in April 2000.

Younger workers can hold out until the market turns. But older employees – who tend to have more invested – are vulnerable. As a result, they may be more sensitive to perceived discrimination.

Three volatile situations

Experts on age discrimination point to three situations when companies are most vulnerable:

  1. When hiring: make sure you document every hiring decision, whether or not an offer was extended. Under the Age Discrimination in Employment Act (ADEA) it’s unlawful for an employer to discriminate against candidates because of their age. This includes refusing to hire a candidate. It also includes compensation, terms and conditions of employment, and all benefits.
  2. When firing: do it so that people maintain their dignity. Human resource executives “don’t always acknowledge the true loss to the individual,” says attorney and Wharton School of Business professor Debbie Weinstein. If people feel insulted in the process, they’re more likely to lash out in anger. “Many age discrimination suits arise at the moment of termination,” Weinstein adds. “It’s the manner in which they’re terminated that makes them walk out the door dissatisfied.”
    Of course, during the exit interview, avoid saying things that might make you – not the employee – feel better. “I know you’ll find another job in a week” isn’t what any fired worker wants to hear.
    And don’t make patronizing statements such as, “I know exactly how you feel.” You don’t know the anguish the fired employee feels, and you risk angering the person, which increases the likelihood of a suit. It’s better to remain calm, listen to the employee and avoid conflict.
  3. When training and promoting: be aware that a substantial number of age discrimination suits arise when employees believe they were passed up for promotions or for training because of their age. Always document valid, legal reasons for promotion- and training-related decisions.

Avoid age-based assumptions

Weinstein cautions that management shouldn’t make assumptions about what older workers want. For example, don’t assume that they’d rather lose their job than take a lower-level position.

And don’t assume that an older person won’t learn as quickly as a younger person. Older workers tend to value their jobs more. They might be willing to take on more responsibility – and add more value to the company – than their younger colleagues.

When you can make age-based decisions

Age-based decisions are not unlawful where age is a bona fide occupational qualification reasonably necessary to the normal performance of the job. In other words, a 60-year-old actor can’t claim discrimination under the ADEA because he wasn’t cast as a child. A less dramatic exception: state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.

The ADEA applies to people who are over 40; there’s no upper age limit and it applies to employment practices in both the private and public sectors. ADEA protects workers over age 40 against discrimination, including being forced to retire. Of course the employee must have been meeting the employer’s expectations up until the point of the alleged discrimination.

Source: Debbie Weinstein, Eckert Seamons

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