In light of the Supreme Court's recent 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 un-intended age-bias or be certain you can show that you base the policy on a "reasonable factor" other than age, such as competitive 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 produce evidence of intentional discrimination: the equivalent of a "smoking gun." Employees can now sue if your policy is disproportionately negative on older workers, even if bias isn't deliberate.
The good news: The Supreme Court added an important caveat: Workplace policies that appear to disfavor older employees may still be deemed legal if they're based on "reasonable factors 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 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: 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-neutraland to avoid negatively stereotyping older employees.
Age-bias quiz: Do your policies discriminate?
If you answer "Yes" to any of these questions, you may have violated the ADEA.
1. Do you differentiate or classify employees in any way that would set them apart and deprive them of employment opportunities because of age?
2. Do you vary compensation or terms of employment on the basis of age?
3. Do you limit older workers' participation in?
4. Do you request "young" applicants or "recent college grads" in want ads?
5. Do you limit or deny training opportunities for older employees?
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