Nothing in employment law says you can’t fire an older worker. But because of the Age Discrimination in Employment Act (ADEA), you need to be careful when you do it.

The EEOC has just issued proposed guidelines that would make it easier for employers to be sure they’re on solid legal ground when parting ways with over-40 employees.

EEOC suggests three questions
The EEOC guidelines suggest three questions to ask before you send out the pink slip:

  • Did the employee’s supervisor have “unchecked discretion” to assess employees’ performance subjectively? (Obviously, that’s a bad thing.)
  • Are any of the factors contributing to the termination known to be subject to age-based stereotypes? (For example, is the employee being terminated because they “can’t learn the new computer system”? You can fire someone for that, of course, but you’d better be able to prove that you apply the rule even-handedly.)
  • Did you give your supervisors guidance or training about how to avoid age-related discrimination? (Obviously, you should).

Be reasonable
So, you’ve decided that Old John has to go because he’s shown up late a couple of times. You’ve documented the lapses. But that may not be enough, EEOC advises. To pass legal muster, your rationale should also be what the EEOC considers “reasonable.” (Together, these two points add up to Reasonable Factors Other Than Age (RFOA), in the EEOC’s jargon.)

Your justification for getting rid of older employees should:

  • Be a common business practice implemented normally (e.g., you always fire people after their second tardy)
  • Be related to your stated business goal (e.g., late employees slow down production)
  • Be accurately defined and applied (e.g., “Joe was more than fifteen minutes late on two occasions in February, which violates the policy in employment agreement that he signed.”)

You’re not done yet, says EEOC
Finally, take into account any possible adverse impact on older workers from these factors and try to minimize it, and consider whether other options are available. (For example, if John might do better on a later shift, could you try that before you fire him?)

Those are a lot of hoops, and you may not be able to jump through all of them every single time. But they give you a useful checklist to assess your risk. If you keep these guidelines in mind, it’ll be hard for older employees who were legitimately terminated to turn around and claim you harbored some kind of bias against them. And if you can’t meet every condition, it’s a sign to take a harder look at that termination or seek legal advice before you act.

photo credit: Professor Pigg

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