Law: Age discrimination in the workplace

When I lived in Washington, D.C., back in the 1980s, then-President Reagan told the following joke at a convention.

Several old college classmates were at a reunion and had not seen each other in more than 30 years. One remarked to the other: “I've felt awful lately. Every time I look in the mirror, I notice I'm losing more hair, I'm getting a double chin and my gut is bigger than my chest.”

To which his friend replied, “Look on the bright side - at least your eyesight is perfect!”

As if receding hairlines, paunches and midlife crises weren't bad enough, the baby boomer population has something else to worry about - age bias in the workplace.

The Federal Age Discrimination Act (ADEA) prohibits discrimination against people above the age of 40. According to the Equal Employment Opportunity Commission, age-bias complaints comprise one of the fastest and largest growing complaints submitted to it (along with retaliation complaints).

The costs in attorney's fees, settlements and judgments against employers are well over $100 million a year. Lawyers who practice employment law and defend employers believe that age claims are the most difficult type of employment claims to handle, especially if being tried to a jury.

Plaintiffs in age discrimination cases often engender sympathy in jurors, as we all recall a favorite older uncle or grandmother. Moreover, juries recognize that all people including themselves will fall within this protected age group at some point.

Employers, therefore, are wise to avoid such claims. To stay out of an age discrimination lawsuit, an ounce of prevention is worth a pound of cure.

Are you getting tired of reading that in my columns? Well, if more employers followed that advice, you would put most employment attorneys out of work.

Your first step to avoiding an age-discrimination lawsuit can be performed internally by your own HR department. You have to ensure your work environment is free from age bias.

Tell your employees  that discrimination in any form will not be tolerated and hold them accountable. Increase awareness among your employees, and particularly among your supervisors, by ensuring all employees are trained on harassment prevention and anti-discrimination - with special classes for those employees in supervisory positions.

Here's one example of where you really need to train your employees: emailed or other jokes and comments. For years, employers have been mostly worried about preventing sexual harassment in the workplace - don't send dirty emails or tell dirty jokes!

As a result, employers often forget about other inappropriate comments. Referring to certain employees as “dinosaurs,” “old farts” or “greyheads” or joking that they are “older than dirt” or similar comments are  actionable.

Statements such as “we need some younger blood in here” and “time to bring in the young guns” are equally problematic.

Courts may find that such comments are motivated by an illegal stereotypical belief that productivity and competency decline with age. As a practical matter, employers should train all supervisory personnel on the prohibition of such comments and, in the event such comments are made, appropriate discipline should be administered to prevent a repeat occurrence.

If you are an employer, it is time to put those comments “out to pasture.”

Second, be consistent with all employees.

All your employees should be held to the same standard of performance. In doing so, treat employees on the ability to do their jobs rather than assumptions about their age.

Here's another example: A client called me to discuss the problem he was having with an older worker in a sales position who had been “slowing down” and not generating new business at the level his boss expected.

While the employee was still bringing in revenue from the long-standing accounts he'd generated in the past, he wasn't going after new business.

The client asked my opinion on whether he could approach the employee about his retirement plans.

Wrong!

Instead, I recommended he put reasonable sales goals in place - not just for this employee but for all of his sales staff - and focus on the expectations for new customer sales generation, or set minimum cold call standards that must be met - again, for all sales reps.

The morale of the story: Set measurable performance goals for all employees and consistently apply them.

In a future addition, this column will discuss how to avoid age discrimination in the promotion and reduction of your work force, and reduce litigation.