10/ 31/ 2005
by Jeffrey Moses
The federal Age Discrimination in Employment Act of 1967 prohibits employers from discriminating against job applicants and employees because of age. This act pertains only to individuals 40 years or older and to employers with more than 20 employees. It involves discrimination in such fields as:
- Advertising for applicants
- Interviewing and hiring of applicants
- Salaries
- Promotions and demotions
- Termination
- Job training
- Benefits and retirement (covered in the federal Older Workers Benefit Protection Act)
Small businesses are at great risk for violating the act’s provisions. Rapidly growing companies often change directions, bringing in new employees and letting go of those without expertise in new areas of operations. Too often, the termination of an employee over 40 years of age can be viewed as discrimination, even though age may not have had any bearing on the company’s decision.
These acts allow individuals 40 years and older, who feel they may have been discriminated against, to sue the employer who may have violated their rights. As noted by legal experts experienced in age discrimination lawsuits, these cases can be especially expensive for employers found guilty. Older employees often have been with a company for some time and have higher salaries and benefits. Lost future salary and benefits can therefore be significant as well as accompanying punitive costs.
Because of their length of time with a company, older employees may have an easier time proving that their rights have been violated. When an individual has been with a company for many years, he or she can be presumed to have been performing adequately. Why then would the company suddenly terminate the worker if not for age discrimination?
Preventing age discrimination
Employers should be aware of potential age discrimination and take all necessary steps to prevent it:
- Always consider age when interviewing and hiring. Avoid hiring a younger person who is not as qualified as an older applicant. The Age Discrimination in Employment Act and many state regulations say that specific job requirements should be put in place only when they are actually necessary to determine if a person can or cannot perform required tasks.
- Promotions, salary increases or decreases and terminations should be reviewed with potential age discrimination in mind. Companies can, when financially required, terminate workers because of their higher salaries. But such terminations must be “across the board,” not focused on a single worker. Consult with an attorney experienced in the field when potential discrimination exists.
- Managers should be aware of potential age discrimination during performance reviews, job assignments, assignments for training and when selecting teams and team leaders.
- Managers should avoid mentioning age in e-mails, memos, speeches, help wanted ads of all types and all other company ads and announcements.
- Managers need to be sensitive to the needs and feelings of older staff. (Studies show that about 31 percent of all workers report to a supervisor who is about their same age, and 16 percent report to a younger supervisor.)
Value of experienced workers
It is an accepted truth today that our culture favors youth. But in the business world, there are many reasons for small companies to do just the opposite. Older employees offer experience, reliability, stability and wisdom. Veteran workers often have the experience to know what will work and what won’t––a skill that cannot be taught. When involved in split-second decisions, such experience can save a company time and money.
Small businesses would do well by taking to heart the essential goal of the Age Discrimination in Employment Act––valuing the inherent aspects that make up a good employee, including loyalty, experience and reliability. The best way to avoid violating an employee’s rights is to make all decisions involving the employee based on ability, not on age, length of time with the company, years to retirement or salary.
Note: All states have enacted regulations regarding age discrimination. Many of these include companies with fewer than 20 employees. Review your state’s particular regulations and consult with an experienced attorney when in doubt.
