Sadly, there are far too many employers who actually look for unscrupulous ways to fire their older workers so they won’t be eligible to collect most of their hard earned retirement benefits. Yet discriminating against older workers is not only morally wrong but expressly forbidden by various legislative acts passed by Congress. The information shared below should acquaint you with the basic statutory protections provided to older workers so their days in the workforce won’t be wrongfully curtailed.
However, recent case law is also referenced that may have significantly eroded the rights of older workers to remain free from age discrimination.
Federal Statutory Acts Designed to Protect Older Workers
The Age Discrimination in Employment Act of 1967 (ADEA)
This act sought to protect workers and job applicants at least forty years of age or older from discriminatory employment decisions in such areas as hiring, compensation, promotion and discharge. The U. S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADEA. Only employers with 20 or more employees, including state and local governments, are bound by the ADEA. However, state age discrimination laws may apply a different numerical cutoff and cover more workers. In addition to the federal government, the ADEA covers labor organizations and employment agencies. In recent years, an increasing number of age discrimination lawsuits have been filed with the EEOC. Since it usually takes older workers much longer to find new jobs, this increase is cause for measured alarm.
The Age Discrimination Act of 1975
This Act may cover more employees since it covers workers of all ages. However, only those working under programs or projects that are at least partially funded by the federal government are protected by this Act. The Department of Labor’s Civil Rights Center has been assigned the duty to enforce this act.
Recent Case Law Threatens Older Workers’ Rights Against Age Discrimination
Unfortunately, in a 5-4 decision, U. S. Supreme Court Justice Clarence Thomas rendered an opinion in the case of Gross v. Financial Services, Inc., that may make it much more difficult for older workers to prevail in their future age discrimination cases.
Stated simply, Justice Thomas has shifted the burden of proof so unilaterally to the plaintiffs in age discrimination cases that few may be able to meet this new, rather unreasonable standard. Under this questionable decision, those who believe they were fired due to ageism or age discrimination, must now prove by a preponderance of the evidence (more than half of it), that “but for” the age issue, they would not have been fired. This new court standard is even considered binding when the poor plaintiff can show that age played at least some role in the firing. As a learned New York Times Op-Ed writer has noted, it may take direct action by Congress to undue the damage caused by this decision.
A Morally and Legally Correct Way to Fire an Older Worker
Hopefully, more and more employers will begin to recognize the economic advantages of seeking out and retaining older workers in their organizations. Yet until that happens, it may help employers with legitimate reasons for wanting to let an older worker go -- to review all of the following activities that should normally be enforced in any fair and legitimate workplace:
- Regular employee evaluations must be held and employees must be given a chance to respond to any negative assessments. A written record should be kept of all such evaluations
- Serious complaints made by any worker’s superiors or co-workers should also be committed to writing; the employee should be allowed to respond to them. He or she should initial these complaints so the employer can later prove they were shared
- Initial employee orientation meetings must contain a presentation about the forbidden act of discrimination against any individual or group in the workplace
- An employee handbook must always be given to all new employees (and older workers if a new handbook has been issued); this handbook should clearly define all of the different types of forbidden discrimination. Employees should also be told who they should report any discrimination complaints to in the workplace and how those complaints will be handled.
- An older worker’s supervisor who believes the older worker’s productivity has been declining must keep very detailed records about this type of problem. Copies of defective written work should be kept, clearly noting that the older worker was told of the supervisor’s dissatisfaction with it. The worker must initial any such work product and also note if he (or she) was given at least one chance to redo the assignment(s).
When to Get Legal Counsel
Once you learn an employee is planning to file an EEOC claim based on age discrimination grounds against your company, you should first try to see if there’s any way you can resolve the matter within your office. If that isn’t possible, you should immediately contact your lawyer. If you don’t have one, please consider seeking out one of our employment law attorneys. This individual can advise you about such matters as the documentation you should immediately gather together to protect yourself and what you should tell your remaining employees to do if they’re contacted regarding this same lawsuit.