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Conduct age audit to show you don’t favor young workers

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in Discrimination and Harassment,Human Resources

Chances are, your organization employs plenty of workers over age 40 and quite a few in younger age groups, too. In tight economic times, you may have to trim staff to save money. Undoubtedly, some of those RIF victims will be older. That doesn’t necessarily mean that you will be on the losing end of an age discrimination lawsuit.

To check where you stand, do a quick age audit. Tally up how many employees you have over the age of 40. Check what positions they hold—that is, whether they are concentrated in one division or certain job classifications.

If you have a good mix of ages, skewed somewhat toward those older than 40, chances are you will be fine if one of the employees you let go charges age discrimination. That’s because the employee will have to show one of two things:

  1. Indirect evidence of age discrimination, such as having been replaced by a younger employee
  2. Direct evidence, such as an outright statement by a decision-maker that age was a factor or that a younger work force was the goal.

The latter is tough to do if the remaining work force includes lots of older employees.

Recent case: George Forsthoffer worked for the Iron Shop since 1973. He was fired at age 59 for alleged work deficiencies—the company said his work habits had deteriorated over the past five to 10 years. Forsthoffer sued for age discrimination.

But the boss who fired Forsthoffer was almost 80 years old. Other co-workers were in their 50s, 60s and 70s. Plus, there was no evidence the company treated younger workers any better than older employees.

The court tossed out the case. It ruled the company showed no obvious age discrimination pattern given its demographics, and that Forsthoffer offered no proof that age was a factor or that younger workers had been treated more favorably. (Forsthoffer v. Max Cohen & Sons, No. 06-CV-4069, ED PA, 2008)

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