Age discrimination has become today’s big employment law issue. And it’s because people live longer than in the recent past and also work longer. Some work longer by choice; others have seen their retirement funds obliterated and are forced to continue working.
It’s yet another danger spot managers need to watch.
Older job applicants and employees have strong protection under the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination based on age.
The law applies to employers with 15 or more employees, and it covers people who aren’t very old at all. It starts at age 40.
1 Age fishing during job interviews
A spot where many ADEA violations happen is in hiring. And one of the most common violations is asking questions that could be construed as probing into an applicant’s age.
Anybody knows not to ask, “How old are you?” But just as bad is, “How old are your children?” or, “Do you have grandchildren?”
Neither should one ask when somebody graduated from school. There may be good reason to ask what the major was or if the applicant did an internship, but there’s no reason to ask for the graduation date. That’s a query into age.
It is not illegal to ask someone’s age. But the danger is that the question will spawn an argument that the office was trying to cull old people. And if the manager asks a 60-year-old’s school graduation year and the job is then offered to someone much younger, watch out for a claim of age discrimination.
A similar problem is created by the fact that people now go back to school in midlife to pursue new careers. Be careful of giving the nod to a young nursing school graduate while turning down a more qualified 45-year-old graduate.
2 Hinting at retirement
Another ADEA danger area is intimating someone needs to retire. The office can fall into it unwittingly. Suppose the doctors are employees of the corporation. Dr. Smith has his 65th birthday, the office throws a party, and the managing physician claps him on the back and says, “You’re getting ready to retire soon I bet” or, “So you’re moving to Florida now, right?” If Dr. Smith is later fired or doesn’t get a raise or is passed over for a promotion, those comments can turn into evidence that the adverse employment decision was made because of his age.
3 Laying off the old folks
Layoffs come into play, too. Basing them on age is illegal and, when it happens, it’s easy to prove.
Suppose a new manager comes in eager to shake things up and get rid of the deadweight. The manager sees the older receptionist who has been at the front desk for years and says, “Let’s get somebody who’s more presentable.”
Or suppose the layoffs are necessary to cut expenses and the office targets the people who make the most money. Invariably, the highest-paid people are the ones who have been there the longest – and they’re older than 40.
There’s nothing wrong with basing layoff decisions on salary. But if the office later fills those positions with people younger than 40, it smacks of age discrimination. And along with that can come a claim of disability discrimination, because older people take more time off for medical reasons.
For safety, if the positions are refilled, offer them first to the people who got laid off. This can actually thwart a claim of discrimination.
The safest route is to lay off the same number of people under 40 as over 40. And as part of the severance agreement, have each person sign a statement acknowledging that the layoffs were made fairly. It’s difficult to claim any type of discrimination when there’s proof the employer tried to be fair.
