The age discrimination law seems very straightforward; however, like most employment laws it takes a team of lawyers to protect you if your organization is accused of violating it. Anyone forty years of age or older falls within the protected class and is covered under the law. Sounds pretty simple doesn’t it? I only wish it was that simple.
To begin with forty years old is not that old and therefore an employer can fall prey to making passing statements that come back to haunt them later. Perhaps it is an innocent birthday cake celebrating someone’s fortieth or older birthday and you jokingly have “Over the Hill” written on the cake. Or maybe you have a small toy rocking chair placed on the cake. Seems innocent and most likely everyone will laugh and joke including the person having the birthday, but watch out if you have to take an employment action against this person in the future.
When it comes to your hiring practices the age discrimination law once again seems simple but let’s take a look at how an employer can find themselves in hot water. Remember we are not permitted to ask an applicant how old they are so technically we don’t know. However, during the interview process you make a comment like we are looking for young blood, or our operation is very fast paced do you think you can keep up? Later when you select someone else for the job you are shocked when you discover you are being sued for violating the age discrimination law. When you go to court they will examine all the applications and if it appears that you are only hiring younger applicants it could end badly for you.
When it comes to taking action for someone’s poor performance the discrimination law is still hard to interpret. Remember that if an age discrimination law suit makes its way to court juries are very sympathetic to employees and not employers. So when you are requiring an aging employee to produce as much as everyone else, especially when they used to be able to, a jury may not see it the way you do. The opposing attorney will require you to produce all your employment actions that you have taken in the past and if the trend indicates that you seem to take more adverse actions against employees over forty get your checkbook out and start filling in the zeros.
The age discrimination law also requires you to protect those employees over forty from discrimination and/or harassment from other employees. The law states that if an employer knows or should have known that an employee is being discriminated or harassed by another employee the employer is responsible. In other words your defense can’t be that you didn’t know. This is where training, training, and more training must be a part of your organization. That is why it is so important that you insure that you make it clear to all employees that any form of discrimination will not be tolerated.
Jokes are a prime candidate for violating any discrimination law especially when it comes to age. People don’t seem to see the harm in it until it’s too late. Again, in most cases the victim generally laughs along with the joke and may even add to it. These types of comments or jokes may come during an employee meeting where the supervisor is available to put a stop to it, but instead it may seem like their almost encouraging it. If I can give any advice at all I can’t recommend more strongly that the supervisor stops it in its tracks.
Thank you and May God bless you!