As layoffs are occurring throughout the U.S., claims of age discrimination are soaring. First, we must review age discrimination law:
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to employees and applicants alike. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to staffing firms and labor organizations, as well as to the federal government.
In an article by Jennifer Levitz and Philip Shishkin, it is said that:
Figures by the federal Equal Employment Opportunity Commission show that age-discrimination allegations by employees are at record highs. 24,600 claims were filed in the year ended Sept 30, 2008, up from 18,103 in 2007. Employment discrimination complaints are also at a record high – up 15% to 95,402 complaints. The EEOC said the most dramatic increase was in the age-related complaints, however.
Age-bias claims are rising even though the 6.5% unemployment rate for January, 2009, among those 40 and above, was below the 10% rate for younger workers. There are an increasing number of aging employees in the workplace which may account in part for the trend. According to the Department of Labor, approximately 40% of people 55 and older were in the work force in January, 2009, opposed to 36% in January of 2004 and 32% in January, 2000.
Some researchers believe laid-off older workers may be taking more legal action to recover their jobs or lost wages because it’s harder for them to find new gainful employment, compared to their younger counterparts. Also, some lawyers believe recent legal developments make it easier for employees to allege age bias.
It’s also possible that companies may be targeting older workers in some layoffs “because the senior staffers are generally the highest paid and have the most lucrative benefits,” says David Grinberg, spokesman for the EEOC.
How can you protect your company from being accused of discrimination? Firstly, ensure your hiring, employment and firing practices are consistent for all candidates and employees. Secondly, make sure you have sound business reasons/cases for laying-off older workers in the protected class. Finally, be aware of the 2005 Supreme Court decision that broadened the interpretation of age discrimination to include cases in which there is no evidence of intentional discrimination. If possible (based on your workforce age), ensure your company isn’t disproportionately laying off older workers without good cause to back up your decisions.
It is becoming more difficult for companies to completely avoid age-discrimination allegations in this tightened economy, yet if you are in the habit of treating all employees fairly and equally you will best be able to position yourself from losing discrimination cases brought against you.