Trouble in the Graying Workplace: Age Discrimination

03/05/07

The U.S. Government reports that age-discrimination claims handled by the Equal Employment Opportunity Commission (EEOC) jumped 14.5 percent in fiscal year 2002.

Employers who violate the Age Discrimination in Employment Act (ADEA) open themselves up to substantial liability. Jury Verdict Research reported early in 2002 that the median compensatory awards for age discrimination claims had risen to $268,926. Age discrimination plaintiffs, it notes, were awarded the most money between 1994 and 2000 — more than those winning race, sex, or disability discrimination suits.

Good training and leadership can protect employers against charges of age discrimination — not to mention six-figure jury awards. The clarity of the ADEA, which applies to organizations with twenty or more employees, makes it easy to comply. Simply put, the law says that it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment. That includes hiring, firing, promotions, layoffs, compensation issues, benefits, job assignments, and training. The ADEA also prohibits retaliation against anyonemaking a charge of age discrimination or participating in an investigation or legal proceeding.

Reasons Behind the Rise
Why are age claims rising? Demitrios M. Moschos, a partner with law firm Mirick O’Connell in Worcester, Massachusetts, offers three reasons:

1. Downsizings and reorganizations have increased in the past few years. “When companies downsize,” he says, “there is an impact on higher-paid people, who tend to be older.”
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3. Claims rise when unemployment rises. Laid-off people review their rights and consider making allegations in an effort to preserve their income.
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5. Employees are simply becoming more aware of the age-related legal protections available to them.

Moschos also believes age discrimination is a cultural issue in the U.S. “We have a youth culture in this country. That culture tends to diminish people’s appreciation of older employees.”

‘Loose Lips Sink Companies’
Setting youth on a pedestal can lead to loose talk and poor decisions. Moschos: “I tell companies that I advise, ‘Loose lips sink companies.’” He’s known supervisors, for instance, to make off-hand remarks like, “We only want young people here.” Such negative statements are not only harmful stereotypes but, adds Moschos, “They create legal liability. And it’s very hard for me to defend a company when loose-lipped managers say negative things.”

Moschos also believes an increasingly informal culture is an ingredient in age discrimination. “The workplace has become so informal that people forget that work is a formal endeavor — even if the style of clothing is informal and people call each other by their first names.” Informality can encourage people to voice discriminatory views without thinking.

His advice: Train managers and supervisors to use language that is age neutral at all times, and to make sure their actions are age neutral in all regards.

Fend Off Claims Without Merit
A good way to defend an age claim — or even prevent one in the first place — is to have comprehensive, accurate documentation in place covering performance and disciplinary issues.

That’s because a poorly performing, disgruntled employee could launch a discrimination suit in an attempt to damage the organization. “If the employee is a bad employee,” says Moschos, “it should be documented. It is very difficult to defend a company when they say someone is a bad employee and the performance appraisals all say he’s a good employee.”

Leaders: Set an Example
Besides documenting all personnel actions and ensuring that managers conduct honest appraisals, you need leadership. Managers must demonstrate respect for all employees at all times. And that starts at the top. “In my experience,” says Moschos, “the president of a company sets the tone. Others respond to how the president operates.”

Leaders must show, in word and deed, zero tolerance for discrimination in all its forms. “That,” concludes Moschos, “is how to be sure you don’t have a discriminatory workplace.”

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