An increase in age discrimination claims may be as inevitable as the graying of baby boomers. But some smart planning and good policy follow- through on your part can keep you out of court.
First rule: Don't think you're immune if you run a small business. It's true that the federal Age Discrimination in Employ-ment Act (ADEA), which prohibits discrimination in hiring, firing, pay or promotions against workers ages 40 and older, applies only to companies with 20 or more employees. But many states have passed laws that bring the threshold down below 20 employees, sometimes to only one employee. Check your state law right away.
The bottom-line test for age discrimination is to ask yourself: But for the person's age, would he have been hired, fired or otherwise treated the same as younger, lower-paid workers?
Here are some other key employment policies to help you avoid an age-bias suit.
Zip your lip
The childhood taunt of "sticks and stones may break my bones but words will never hurt me" doesn't hold true in a lawsuit. Even one comment can be used against you to prove an ADEA violation.
Spread the word to managers that even offhand remarks about cutting the dead wood and bringing in fresh blood can hint at age bias, as can age-related comments and jokes about workers. Even if the single comment doesn't sink your defense, you probably don't want it echoing around a courtroom while you try to defend an employment action.
Respond quickly whenever there's an obviously discriminatory, or even questionable, comment by publicly reinforcing your company's position.
No magic number
Contrary to popular belief, age discrimination doesn't just apply to someone older than 40 losing a job to someone younger than 40. An employee simply has to show that he was replaced by someone "substantially younger." The Supreme Court allowed a 56-year-old to file suit even though his replacement was a 40-year-old. (O'Conner v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307)
And while most state laws mirror the federal law in allowing only workers 40 and over to file suit, some courts are pushing the cutoff age lower. Example: A New Jersey court last year allowed a 25-year-old to claim age bias.
Not just a firing issue
Age bias isn't just about forcing out older workers. For example, if your hiring practices deter older candidates from applying for jobs, that can be illegal.
Shifting an employee's job without altering his salary can also spell trouble if coupled with such actions as stripping responsibility. One 58-year-old won his case by arguing that he was moved into a do-nothing job at the same pay; meanwhile, his much younger replacement got a raise.
Base employment decisions on objective, verifiable and documented criteria when possible. But if you must use subjective criteria, ensure that they are applied consistently for all applicants.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Track discipline to ensure equal treatment for equal offenses, regardless of protected class
- Offhand remarks don't prove age discrimination
- Make and keep interview notes to prove promotion process wasn't discriminatory
- When disagreement turns to cursing and threats, feel free to terminate for insubordination