AKRON, Ohio – Organizations often make employment decisions based on “the need for new blood” or promote someone because of her “fresh ideas and energy.”
But what might seem to be a harmless cliche could be construed as code for a policy that favors younger workers. And that is against the law.
A recent U.S. Supreme Court ruling made it easier for workers to sue for age discrimination.
Now, attorneys are warning employers to examine their policies to make sure they aren’t unwittingly discriminating against older workers and leaving themselves vulnerable to claims.
“As Gen Xers start replacing baby boomers in jobs, this is becoming a greater issue,” said John Susany, a labor attorney with the Akron firm Stark & Knoll. “The practical advice is, you need to review your policies with your HR people and your lawyer and project how they will impact the aging work force.”
More than 70 million
Last year, 72.8 million workers – more than half the American work force – were age 40 and older, according to the Bureau of Labor Statistics. And that percentage is growing.
The number of age discrimination claims filed with the Ohio Civil Rights Commission has risen 5 percent over the past five years.
Susany said he expects that trend to continue, particularly in the wake of the Supreme Court decision Smith vs. Jackson, Miss., which established that employment policies that have a disparate impact on older workers can be found to be discriminatory. In other words, employers can be guilty of age discrimination even if it is unintentional.
G. Michael Payton, executive director of the Ohio Civil Rights Commission, said he doesn’t agree that the ruling will have a significant effect on the work force.
“The theory (of disparate impact) itself is nothing new,” Payton said. “It doesn’t mean there is cause for alarm in expanding liability.”
The theory of disparate impact – that a policy that seems neutral to the letter, but indirectly has a detrimental impact on a protected class – is often applied to other types of discrimination cases.
Lifting 300 pounds
For example, a police department’s policy to hire only people who can lift 300 pounds doesn’t appear to be discriminatory. But the rule has a disparate impact on women, who may not be able to lift as much weight as their male counterparts, but are just as qualified for the job.
A similar argument could be made for older workers, who might not have the stamina or strength of their younger colleagues.
The key to defending any employment policy is proving business necessity, Susany said. If workers must lift 300 pounds in order to perform the duties of the job, employers would not be violating civil rights laws to require that ability.
Susany said the downsizing process poses many potential problems for employers.
When an organization is forced to cut its labor force, the tendency might be to cut a few of the highest-paid employees rather than several lower-paid workers. The result of that approach could have a disparate impact on older workers, who often have more experience and are paid more.
Are you looking for trouble?
“Any time you fire or lay off a person who is over 40, that person is a potential litigant against you,” Susany said. “If most of your work force is over 40, you’ve got a lot of potential plaintiffs.”
In some cases, a collective bargaining agreement is in place to dictate how layoffs are conducted, often applying the last-in, first-out rule. In other instances, employers should make cuts throughout the organization based on qualitative decisions, Susany said.
“You can save money. You can lay people off. But you can’t just lay off the six highest-paid people,” he said. “Because, lo and behold, they tend to be the oldest.”
But discrimination isn’t limited to denying jobs or promotions based on age, said Paul Magnus, vice president of work force development for the nonprofit senior employment group Mature Services.
Organizations that fail to invest in older workers in the same way they invest in younger ones, namely through training and employee development programs, also may be guilty of discrimination.
Fighting the perception
“Traditionally people look at training as apprenticeships to help get workers started,” Magnus said. “We cannot afford in this economy to write off any generation. We need them all.”
Magnus said many managers recognize the value older workers bring to the workplace, namely experience, loyalty and work ethic, and they seek them out.
But, Magnus said, older workers still must struggle against perceptions that they are more inflexible, slower to learn and the fact that they may have fewer years of work left ahead of them.
“There are some stubborn myths about older workers,” Magnus said. “And there is no denying that (age discrimination) is something of concern. But from our perspective, investments in older workers is a very good investment.”
Dan Dawson of Tallmadge, Ohio, was downsized last spring from his job of nearly 22 years. He joined Mature Services’ job club, which meets at the Senior Employment Center in Akron, and he’s determined to remain positive about his prospects for finding a new position, he said.
Still, at 58, he realizes he has a challenge ahead.
“I don’t think it helps me because of my age,” Dawson said. “It’s going to be a fight. But I’m a fighter. You can’t dwell on the negatives.”
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