You’re never too old to be sued
I was born seven years after World War II
ended, so that makes me a baby boomer. One of the most
unsettling trends in my practice is the increase in age
discrimination cases involving employees younger than I am.
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According to my AARP magazine (yes, I am
a member), age discrimination by baby boomers is on the rise.
Apparently, my fellow boomers can’t accept that,
sometimes, they need to be fired, regardless of their age.
In addition, I find the increase in age
discrimination cases disturbing because I think it will have a
chilling affect on the hiring of older workers. How may times
in the last few years have you walked into a store and wanted
to know where the grown ups were?
At my local wireless telephone store, the
average age of the sales person is 22 years old. And honestly,
I feel a little better being waited on by someone with some
grey hair, wrinkles, or a memory that includes where he was
when Kennedy was assassinated.
So, what can an employer do to avoid age
discrimination lawsuits? What can an employer do when a once
productive worker becomes a performance problem?
The obvious answer is to have uniform
production standards applicable to all employees, regardless of
age. Just as employers strive to be race neutral or sex neutral
in their employment policies, they need to demonstrate that
they are also age neutral. Employers need to be able to
demonstrate that all workers, regardless of age, will be
disciplined for nonperformance based on reasonable business
standards.
Of course, there may be circumstances
where an employer wants to hold loyal, long-term employees to a
lesser standard if the failing performance is not substantial.
There is nothing wrong with this, and it may be appropriate.
Consequently, performance may have to be gauged within certain
ranges from acceptable to unacceptable. I am a strong advocate
for rewarding loyalty and experience.
If the time comes when an older worker
needs to be terminated, I also advocate that employers offer a
generous severance package, accompanied by a release. I realize
that sometimes employees believe that the offer of severance is
evidence of discrimination, but that is not how it is perceived
by the courts.
In any event, these releases need to be
properly drafted to be effective under federal law, so you
should get some assistance from your attorney in preparing
them.
I fully expect these age discrimination
cases to increase, especially as more baby boomers enter their
60s. You should know that the Supreme Court recently loosened
the standard for proving age discrimination in a federal
lawsuit, only making it more inviting for employees to sue
after being terminated.
I have one client who recently had three
charges of age discrimination. Two have already been disposed
of favorably to the company, and I suspect the third will be as
well. The client, however, asked, “Does everybody file
age discrimination lawsuits these days?”
I answered his question from the heart. I
said: “The kind of person who gets on with his life by
trying to get another job, rather than suing his former
employer, is normally the kind of person you wouldn’t
fire in the first place.”
The overall workforce is aging, and your
workforce will probably age as well. Remember that older
workers present unique problems, especially when their
termination follows years of service.
Firing an employee of 20 years sounds
bad, at least until you look into the underlying facts to
determine whether his recent performance was decent. Document
the termination of all workers, including older workers. If the
employee has a long history, make sure that history shows a
decline into behavior warranting termination.
To all my fellow baby boomers, you are in
the prime of your life. Spend it in productive pursuits, not in
court.
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