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Justify change that will affect older workers

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in Discrimination and Harassment,Human Resources

Are you planning to change the way you schedule work or provide overtime opportunities? If the proposed changes would affect your older employees, make sure you document solid business reasons to justify the new system, just in case it is challenged in court.

Recent case: Timothy and several other older employees for the California Department of Corrections and Rehabilitation worked in one of three regional offices.

Their job consisted of transporting prisoners in buses from various correctional facilities, including to out-of-state locations. Due to the nature of the job, out-of-state runs meant overtime, and those trips were coveted assignments.

In the central and northern region-al offices, supervisors used an alphabetic rotation system. However, in the southern office, out-of-state runs were assigned to the most senior employees, who also happened, for the most part, to be the oldest employees. As a result, the over-40 crowd got more overtime opportunities than younger employees.

Then the department concluded that using seniority meant less-senior workers weren’t gaining experience because they seldom worked on the longer runs.

It changed to a consistent, systemwide alphabetical assignment system.

Timothy and his older co-workers sued, alleging that the real reason for the change was age discrimination. They backed up their argument by pointing out that one of their direct supervisors sometimes referred to more senior employees as “dinosaurs” and “cancer.”

But the court tossed out the lawsuit, reasoning that the department had good reasons for the change that were unrelated to age. Plus, the supposedly ageist supervisor had actually argued for keeping the seniority system and therefore couldn’t have contaminated the decision-making process with anti-older worker feelings. (Gould, et al., v. California Department of Corrections and Rehabilitation, No. D067425, Court of Appeal of California, 2015)

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