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Scour your policies now for any traces of age discrimination

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in Discrimination and Harassment,Hiring,Human Resources,Leaders & Managers,Performance Reviews

Issue: A new Supreme Court ruling ratchets up your vulnerability to federal age-discrimination lawsuits.

Risk: Employees no longer need to show a "smoking gun." Even policies that inadvertently discriminate can now trigger lawsuits.

Action: Audit your policies to see if they favor younger workers. Now's the time to give supervisors a primer on age-bias law.

In light of the Supreme Court's landmark age-bias ruling, you should schedule time in the coming weeks to review your organization's policies, from hiring to compensation and layoffs, to find out if they disfavor employees over age 40.

If any policy skews in favor of younger employees, either alter that policy to address any unintended age bias or be certain that you can show the policy is based on a "reasonable factor" other than age, such as competitive market pressures or corporate restructuring.

The court's much-anticipated March 30 ruling essentially makes it easier for employees to win lawsuits filed under the federal Age Discrimination in Employment Act (ADEA), which protects people over age 40 from job discrimination.

Older employees no longer need to prove that their employer intentionally singled them out for unfair treatment. Employees now, in many cases, need to show only that an otherwise-neutral workplace policy had an unfairly negative effect (or "disparate impact") on employees over age 40.

The ruling removes the requirement that employees must produce direct evidence of intentional discrimination: the equivalent of a "smoking gun." So, employees can now hang you out to dry if your policy is disproportionately negative on older workers, even if the bias isn't deliberate. (Courts have long recognized disparate-impact claims in race-and sex-bias cases.)

The good news: The Supreme Court added an important caveat: If your policy appears to disfavor older employees, it may still be deemed legal if it is based on a "reasonable factor other than age."

The case: A group of 30 older police officers in Jackson, Miss., claimed that a new city wage scale increased pay for new recruits and reduced raises for senior officers. Lower courts tossed out the case, saying the discrimination wasn't intentional. And while the police officers ultimately lost their case, the Supreme Court said the city's need to compete with neighboring towns for qualified officers was a "reasonable factor" in setting its pay policy, the court's ruling made the more important point that employees no longer need to prove intentional discrimination to prevail in age-bias cases. (Smith et al. v. City of Jackson, Mississippi, No. 03-1160)

Final tips: This highly publicized ruling will perk up employees (and their lawyers) to any possible whiff of age discrimination. Now's a good time to educate supervisors on age-bias law (see www.eeoc.gov/types /age.html). Plus, remind them to give age-neutral performance reviews and to avoid negatively stereotyping older employees.

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