Private Duty

Take the following steps to protect your agency from age discrimination claims

In an era of increased awareness of discrimination and harassment in the workplace, it’s important to remember not to discriminate against employees based on age.

The rules regarding age discrimination differ in some ways from other types of unlawful discrimination in the workplace, which can trip up the unsuspecting.

For example, while overt age discrimination or age harassment in the form of a hostile work environment violate the Age Discrimination in Employment Act (ADEA) and corresponding state laws, an employer can also unintentionally violate the law by engaging in actions that appear objective but create a disparate impact on older workers, says attorney Rick Hackman with Saxton & Stump in Lancaster, Pa.

For instance, an employer could have neutral criteria in determining which employees to lay off, but if most of the people being laid off are over 40, that could be legally problematic.

Also, ADEA protects employees who are age 40 and older, which isn’t very old. Some state laws protect workers from an even earlier age. And while ADEA applies to employers with 20 or more employees, some state age discrimination laws apply to smaller employers, according to attorney Audrey Mross with Munck Wilson Mandala in Dallas.

In addition, the discrimination need not be simply where the victim is over 40 and another employee receiving better treatment is younger than 40. The courts and the Equal Employment Opportunity Commission (EEOC) have ruled that unlawful age discrimination occurred in situations where the employee receiving preferential treatment is also over 40, and the victim of discrimination is just five or six years older.

“It’s the disparity,” Hackman explains.

And while isolated remarks — especially from one coworker to another — are not generally enough to support an ADEA claim, those from a supervisor or other manager are more likely to be viewed as unlawful discrimination.

“A stray comment from someone with hiring and firing power carries a lot more weight,” she says.

Risk of violation increasing

The possibility that an employer will be accused of violating the age discrimination laws is rising in large part because the workforce is aging, so more workers are in the protected class, says attorney Jon Hyman with Meyers, Roman, Friedberg & Lewis in Cleveland.

This can become an issue because employers want to plan for the future. For example, an employer may want to add staff who are “digital natives” and more familiar with web design or social media platforms; these tend to be younger people. But the EEOC’s position is that requiring technology knowledge may itself be age discrimination, he says.

“There’s some perception that younger people will take lower salaries and have more energy,” Mross says. “Baby boomers are feeling the pressure. If they’re forced to retire or [are] pushed out, it will result in claims.”

More than 18,000 age discrimination claims were filed with the EEOC in 2017.

The penalties can be steep. In June, a jury in California awarded a former employee of a medical supply company a whopping $31 million in damages against her employer.

The employer did not deal with age-related harassment against her by her new younger supervisors, who frequently made comments such as “you are outdated” and “you are part of the old culture.”

The employee also suddenly received more work, was not allowed the same training as younger employees and was passed up for promotions.

Health care providers may be particularly vulnerable to age discrimination claims because of the rapid adoption of electronic medical record (EMR) systems and other medical technology and the ensuing need for employees to know how to use them.

“There is definitely a technology gap [between older and younger workers in health care],” Hyman says.

Note that this doesn’t mean that you have to favor older workers. So for example, if EMR proficiency is required and after reasonable training an older worker isn’t becoming proficient or refuses to learn, then it’s not an age issue, it’s a performance issue.

“The employer still has the right to hold employees to reasonable job requirements,” Hyman says. Email – Marla Durben Hirsch