The Age Discrimination In Employment Act

By Nils P. Johnson
Johnson & Johnson Law Firm

YOUNGSTOWN, Ohio – I have never seen so many job-wanted signs!  My business clients all complain they cannot find qualified workers. 

Much of this of course is attributable to declining birth rates. Also, the COVID epidemic and generous unemployment insurance did cause many folks to leave the workforce or seek early retirement.

However, with the advent of 8% inflation, people are starting to come back – and many of these folks are older – as witnessed by the workers one sees in their 70s and up working at retail establishments and grocery store check-out counters. 

For employers, older workers present both big advantages and certain challenges.

On the one hand, experience is valuable in any field. Moreover, many baby boomers were raised with stories of the Great Depression that instilled a strong work ethic.

On the other hand, older workers become ill more often and some of us are slower off the mark in learning new skills. When the economy is weak, it is undoubtedly tempting for bosses to get rid of an older, more expensive worker to be replaced with a younger, cheaper one. 

Be careful. What does an employer have to know about the rights of older workers?

The Age Discrimination in Employment Act prohibits employers of 20 or more from discriminating against workers age 40 and older in: hiring, firing, pay, job assignments, promotions, training and fringe benefits. 

In 2008, the U.S. Supreme Court ruled that a company action that has a disparate impact on a protected employee age group is actionable – unless the impact is attributable to a “reasonable factor other than age.” 

A claimant initially has the burden of identifying the specific employment practice responsible for the impact. Then, in defense. the employer must demonstrate the reasonable other factor. This is complicated and the details are beyond the scope of this article.

Here is some practical advice:

• Do not ask an applicant’s age and avoid sneaky questions that attempt to get at that issue.

• Gentle kidding about a person’s age may be OK but be aware of creating a hostile work environment.

• Base promotions on skills and achievements.

• Do not assume younger workers will be better at certain activities.

• Benefit qualifications should be age-neutral; be aware of the Older Workers Benefit Protection Act.

• If a worker (old or young) is underperforming and might be dismissed, have a procedure that provides written notice of the shortfall and encouragement to improve.  Document all warnings.

• Do not base layoffs simply on the most highly paid, who are likely to be older.

• Never retaliate if a claim is filed.  That is actionable.

• Do not assume an employee will retire at the “Social Security” age.

• Train supervisors in the rules.

• Do not ignore a communication from the EEOC; timelines are in play; call your attorney if a claim is made.

COVID has put incredible stress on employers and workers alike and the current surging inflation has only made things worse. 

At a time when workers are hard to get, many employees are hyper-sensitive and have plenty of options for other employment. An employer who is poorly informed about his obligations toward older employees is looking for trouble.

Copyright 2022 The Business Journal, Youngstown, Ohio.