THE LAW. Under the federal Age Discrimination in Employment Act (ADEA), employers with 20 or more employees cannot engage in personnel practices that discriminate against workers or applicants who are age 40 and older. That includes hiring, firing, promotions, compensation, benefits, job assignments and training. You also can't retaliate against a worker for filing an age-discrimination claim or even just speaking out against your allegedly age-biased practices.
Contrary to popular belief, employees alleging age bias don't have to prove someone under age 40 replaced them, only that they were replaced by someone "substantially younger." For example, the U.S. Supreme Court gave the green light to a lawsuit brought by a 56-year-old who was replaced by a 40-year-old.
Also, check your state age-bias law. While many mirror the federal law, some apply to companies with fewer than 20 workers. Also, some states don't set a minimum age at which legal protections begin. Michigan, for example, allowed a 31-year-old to file a "youth-bias" claim.
WHAT'S NEW? Age discrimination complaints are now the fastest growing category of claims filed with the Equal Employment Opportunity Commission, outpacing those involving race, sex and disability. ADEA claims climbed to 17,405 in 2001, up from 16,008 in 2000 and 14,141 in 1999.
On top of that, age-bias lawsuits are far and away the costliest type of discrimination battles for employers.
HOW TO COMPLY. The bottom-line test for age discrimination is to ask yourself: "If not for the person's age, would he or she have been fired, hired or otherwise treated the same as younger, lower-paid workers at your company?" If you're even the least bit fuzzy on the answer, you could be asking for trouble.
For starters, avoid asking applicants their age, unless you have a bona fide reason. The ADEA doesn't specifically ban this. But it's wise because such a question could imply intent to discriminate.
So are over-40 workers untouchable? No way. You can successfully defend yourself from an ADEA claim by proving one of the following:
- Bona fide occupational qualification (BFOQ). That is, an older worker couldn't perform the job because of his age. Example: Age qualifies as a BFOQ for pilots, who can't earn FAA certification past age 60.
- Just cause. You have an ironclad reason for termination or other job action, such as or misconduct. Well-established documentation is critical.
- Business necessity. A legitimate business reason leads to the discharge, such as a company reorganization resulting from financial troubles.
Secure a signed waiver
When terminating workers, it's smart to have them sign an agreement waiving their right to sue for discrimination. But with workers over 40, you must add an additional provision that deals with ADEA claims.
The Older Workers Benefit Protec-tion Act says waivers must:
- Be in writing and easily understood.
- Discuss age-bias rights and advise the worker to consult an attorney.
- State that the worker is being compensated for signing the waiver.
- Give the worker 21 days to consider the agreement and seven days to revoke the deal after signing it.
- When laying off more than one employee, such waivers must also give workers 45 days (instead of 21) to consider the deal and provide the job titles and ages of all workers affected.
- Read the ADEA's text at www.eeoc. gov/laws/adea.html. Find the EEOC's fact sheet on ADEA at www.eeoc. gov/facts/age.html.
- Learn about ADEA waivers at the EEOC's Waivers of Rights and Claims Under the ADEA page, www.eeoc. gov/federal/digest/xi-6-3.html.
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