A federal court considering the question for the first time has concluded that workers over a certain age can challenge the disparate impact a reduction in force may have on that age group.
The court’s conclusion: Logic says that the older a worker gets, the more likely he will be affected by age discrimination.
Recent case: Rudolph and several other employees at Pittsburgh Glass Works—all over age 50—were terminated in a reduction in force (RIF) when glass production for autos slowed down. In each case, the workers’ supervisors made the final termination decision.
The employees sued for age discrimination, and asked to represent a group of similarly situated, terminated workers over age 50.
The company argued that the workers had to show a disparate impact on workers over age 40, the age threshold under federal law.
The court said the workers could use the older group. It reasoned that the older a worker gets, the more likely discrimination based on age becomes. Therefore, it made sense for the court to consider an older group when looking for discrimination patterns. (Karlo, et al., v. Pittsburgh Glass Works, No. 10-1283, WD PA, 2012)
Final note: Before you conduct a RIF, check whether thewill have a disparate impact on various age groups. For example, check for impact on those 40 and older, 50 and older, etc. Remember, you are looking for inadvertent impact, not obvious discrimination.