The Age Discrimination in Employment Act of 1967 protects individuals who are 40 years of age or older from employment discrimination. This applies to companies with more than 20 workers. Employers are prohibited from recruiting only younger applicants, withholding training or advancement opportunities from older workers, firing employees due to their age, or providing benefits to younger workers while denying those same benefits from older workers.
- Employees can file discrimination charges with federal, state or local administrative agencies. The federal agency responsible is the Equal Employment Opportunity Commission. If the employee wins, he or she is entitled to back pay, attorney fees and court costs and damages. A wrongfully discharged employee is responsible for trying to mitigate damages by attempting to seek employment elsewhere.
- Older workers bring many desirable attributes, so companies should have no inclination to discriminate when filling vacancies or offering promotions. Statistics show older workers have fewer voluntary absences, show a higher level of job satisfaction, and demonstrate lower turnover rates than their younger counterparts.
- Age discrimination in hiring practices is equally as serious as it is in termination cases but more difficult to prove because hiring involves a multitude of selective criteria. To avoid discrimination claims, employment interviews should avoid making any references to the age of candidates. Documentation from interviews should be retained so that a company can illustrate the rationale for hiring a younger worker over an older applicant.
- While the Age Discrimination in Employment Act prohibits age discrimination, there are processes that allow a company to terminate an older employee in a legally acceptable manner. Companies maintain the ability to fire older workers for inadequate job performance or good cause, to encourage experienced workers into early retirement by offering extra benefits, to layoff older workers provided younger employees are treated similarly.
- Because age discrimination suits often use statistics to support a claim of a company “pattern or practice” of discrimination, companies must document non-discriminatory reasons for terminating employees. In disciplinary situations, a progressive disciplinary approach is recommended – one that documents incidents through precise records of each successive step. This will show that an eventual dismissal was based on a good-faith business decision.
- As in individual terminations, a company must carefully document its process when conducting a layoff of part of its workforce so that in the face of a class-action lawsuit it can show decisions were made on a non-discriminatory basis. Evidence of a reduction in product orders or savings for the company under a restructuring plan would show that the reduction in force was not based on age discrimination.
- The best defense is to create a severance package for workers who will be released that goes beyond salary and benefits due those employees. In exchange, the company can request a waiver to release the company from all Age Discrimination in Employment Act claims that could be made by those laid-off workers. To make sure the waiver is valid, the company should follow an eight-point checklist of requirements established by an amendment to the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act of 1990. The amendment also requires a company to provide specific information to employees who are offered a severance package in exchange for a waiver.