Navigating Problem Areas of the Age Discrimination in Employment Act

Harassment: Age-related jokes or comments that are directly or indirectly sanctioned by management could be cause for age discrimination charges. This includes, for example, pointing out an employee's gray hair or aging appearance, or making joking remarks which suggest that the person is of a certain age ("I wasn't even born yet.") Such remarks can be viewed as evidence of a corporate state of mind which is hostile to other workers and can form the basis for an age discrimination case. There must be an office policy and atmosphere that forbids such conduct, and the employer must take swift action to punish offenders. Otherwise the employer may be seen by courts and juries as condoning this behavior.

Terminations: Terminations are the single largest cause for age discrimination lawsuits. Before you decide to fire someone, have a neutral party such as the HR department, review your decision to make sure it is really based on performance. Most employees serve "at will," meaning you don't need cause to fire them. But you cannot terminate for an illegal reason such as age. You may be required, if an age claim is made, to explain the legitimate, non-discriminatory reason for your decision to fire an employee.

If you don't have a reason, or the reason you give is false, discrimination may be inferred. That's why employers must document, before the termination, the true business reasons for the firing. "If you can't explain with documentation why the 58-year-old customer service rep is being fired rather than her 28-year-old counterpart, don't fire the 58-year-old," advises David Rosenthal, a labor and employment attorney with the national law firm Nixon Peabody. "Documentation of performance problems is the single best defense to an age discrimination claim."

Layoffs: If you must do a layoff, compare the ages and personnel files of all those selected for termination with the ages of workers who have been spared. If the lineup is heavily weighted against older workers, the group selected for layoff should probably be reconfigured to include more younger workers. "It's very difficult to explain to juries, many of whom may be older, that it is merely a coincidence that three-quarters of the terminated employees just happen to be 50 or over," Rosenthal explains.

Retirement: The ADEA approves voluntary retirement plans, but they must truly be voluntary. What you cannot do is to require a worker to retire because of age. If, for instance, an employer wants to fire a 65-year-old worker because she's making a lot of mistakes, the manager can't talk about retirement. The manager could say, however, "I'm concerned about the mistakes in your work," and discuss the performance issues. Then document problems, set expectations, and provide feedback. Steer clear of euphemisms like "you're slowing down" or "maybe it's time to think about playing more golf."

Following the letter of the ADEA is critical. The key is to thoroughly train managers and HR staff on the ins and outs of the age discrimination statute and to change employment practices accordingly. Armed with a clear understanding of how to apply the law, you will find it easier to create an environment that values all employees, regardless of age.