A Modern Approach to Age Discrimination Issues 16:46, March 15, 2017

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A Modern Approach to Age Discrimination Issues

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There are many stereotypes about older workers. They can be seen as more reliable and loyal than younger employees, and they can also be seen as harder-to-train and more expensive because of salaries and health care costs. When employers take an adverse action (such as termination or failure to promote) against an older employee, it can be hard to determine whether age discrimination had anything to do with it.

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA) to prohibit discrimination “because of” the age of people over age 39. From the point of view of employers, this definition causes trouble when there might have been several nondiscriminatory reasons for an action against the employee. And employees argue that discrimination against an older employee can sometimes be disguised as something else: employers might claim that they fired an employee for being unable/unwilling to learn about new technology, or they might claim that the employee’s job was eliminated in a reorganization.

Over the years, courts developed a “mixed motive” system similar to claims under Title VII, in which an employee would show that age was one factor in an adverse action, and the burden would then switch to the employer to prove that it took the action for a nondiscriminatory reason.  

But in 2009 the US Supreme Court made it harder for employees to prove that they’d been subject to age discrimination. In Gross v. FBL Financial Services, Inc., the Supreme Court held that an employee must prove that age was the “but-for” (deciding) cause of the employer’s adverse action, instead of just a motivating factor.

Over the years, there have been bipartisan attempts in Congress to enact legislation that would protect older workers and reject the Court’s decision in Gross. The most recent is the Protecting Older Workers Against Discrimination Act (POWADA). A February 2017 press release by Senator Patrick Leahy (D-Vt.) states that:

A Supreme Court ruling in 2009 held that age discrimination claims must prove that discrimination was not just a motivating factor but the sole or overriding factor in an adverse employment decision. This put a higher burden on older workers alleging age discrimination than on those alleging discrimination based on race, sex, national origin or religion. The new bill . . . would level the playing field for older workers by restoring the pre-2009 legal standards for age discrimination claims, ensuring that everyone has equal access to the courts and reinforcing the essential principle that no amount of age discrimination is acceptable in the workplace.

It’s not surprising that bipartisan efforts have been made over the years to overturn Gross. Research shows that age discrimination is alive and well.  

In 2016, California even passed a law requiring Internet websites to remove information about a subscriber’s date of birth or age information upon request. California law prohibits employers from asking the age of a job applicant before an offer of employment is made, and the Screen Actors Guild/American Federation of Television and Radio Artists (SAGAFTRA) sponsored the legislation in an attempt to keep employers from finding this age information on the Internet before they make a job offer.

However, as Politico described, a federal court blocked the law from taking effect when the Internet Movie Database (IMDB) and other parties argued that preventing someone from printing factual information is an abridgement of free speech rights. 

With so much attention on the issue of age discrimination, employers should always be careful to (1) document their nondiscriminatory reasons for taking an adverse employment action and (2) follow company policies when taking any action against an older employee.

Even an employee who is fired for a work-related reason will have a chance to win in court if the employer fails to pay attention to best practices.

Follow Established Policies

For instance, in January 2017 a jury awarded a former Lockheed engineer $51.5 million for age discrimination after it found that Lockheed had offered conflicting explanations for its decision to lay off the engineer and that Lockheed failed to follow its own reduction-in-force procedures. If a company fails to follow its own procedures when laying off or firing a worker, a jury finds it easier to believe that age was an important factor in the decision.

Pay Attention to Timing

In February 2017, a court decided that an employee of the Borough of Carlisle, in Pennsylvania, could proceed with his claim that he was fired because of age discrimination and retaliation for a complaint he had filed concerning age discrimination. The borough argued that it had the right to make a business decision to fire the employee, but the court noted that although the borough made a critical assessment of the employee’s work, it did so after he had been fired. The court found it “difficult to see” how such an assessment could have been the basis for the decision to fire him.

In addition, the employee was allowed to proceed with his retaliation claim because there was no evidence (other than the manager’s uncorroborated statement) that the borough had planned to fire him before he made his age discrimination claim. In a meeting just three days before the employee was fired, the manager reported that he had no plans to fire the employee.

This doesn’t mean that it’s impossible to fire an older employee. Even an employee who makes a claim of age discrimination can be fired if the employer properly documents employee discipline with thorough records.

Watch Your Language

Both the Lockheed and Borough of Carlisle cases dealt with managers who used disparaging language about older employees. In the Lockheed case, the manager said that “older employees have nowhere else to go” and therefore could be treated worse than younger employees. In the Borough of Carlisle case, the manager described the employee in terms such as “old-fashioned,” “old school,” “antiquated,” and “outdated.”

As one law firm noted on its blog, a manager’s remarks indicating age bias can be critical to an age discrimination claim.

Besides giving ammunition to disgruntled employees, a manager’s biased remarks can hinder the employer’s ability to create a diverse workplace, which is important to a company’s success.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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