Could Your Company Defend Itself Against an Age Discrimination Lawsuit?

So many articles about employment from a business's perspective focus on younger employees: how to find them, how to hire them, how to train them and how to retain them. But your company's workforce likely has older workers as well, and it's important not to treat those employees any differently from how you treat younger workers. Otherwise, you might wind up in court.

Individuals over the age of 40 fall into a protected class created by the Age Discrimination in Employment Act (ADEA), a federal law. If your business has more than 20 employees, the ADEA provides protection from employment discrimination based on age. It also applies to state and local governments, employment agencies, and labor organizations. The ADEA specifically covers hiring, firing, promotion, layoff, compensation, benefits, job assignments and training.

How well you can defend your company in an age discrimination suit largely depends on your actions, policies and general employment practices. For example, if you or your managers are lax, employees could have readily available evidence to prove they were unfairly treated or let go because they were a certain age and too expensive.

Clearly, it's not a good idea to use those phrases when letting a protected employee go. Even worse would be communications, written or verbal, instructing managers to get rid of "old" employees.

But even if the evidence isn't that readily available or obvious, a skilled statistician might be able to dig up data painting a picture that strongly supports a discrimination charge.

Many companies don't maintain accurate documentation and analysis of their hiring, firing and promotions practices when it comes to employees in the protected age group.

Your company must track and understand its own data. That way, in the event you face legal action, you can defend yourself against a plaintiff's attorney or expert who will argue that you should pay a substantial amount of money to cover certain damages.

The ADEA includes a section that specifies the types of damages allowed in age discrimination suits. They include:

• Back pay, which is the most common award and includes the value of wages, salary and fringe benefits an employee would've received from the date of the discriminatory act to the date the court hands down a judgment. If the discrimination was willful, the court may double the damages. (Willful discrimination occurs when the the defendant knew or showed reckless disregard for whether, the alleged discriminatory act was prohibited by law.) However, employees often need to show that they tried to mitigate their losses by attempting to find alternative employment.‍
• Injunctive relief, which can include reinstating a terminated employee and ordering the employer to prevent future discrimination. If no position is immediately available, or if there is substantial animosity between the parties, the court can award front pay.‍
• Front pay compensates the employee for anticipated future losses. The award can be for a specific length of time or until the age when the employee intends to retire. The court cannot double these damages.‍
• Liquidated damages are additional to and equal to back pay. They're awarded only if the discrimination was willful.

From a financial perspective, it's clearly worth your while to ensure that your company's policies don't foster age discrimination, either directly or indirectly. If you haven't done so recently or are specifically concerned about something, discuss your company's risks for age discrimination, as well as best practices for mitigating those risks, with a qualified attorney.

11 Key Points to Include in Your Approach to Older Employees:

1. Avoid basing hiring, firing, promotions or bonuses on age-based assumptions such as older employees are inflexible, unable to learn new procedures and likely to retire soon.
2. Make employment decisions about older workers based on their individual skills, abilities and merit.
3. Don't make salary assumptions based on age.
4. Use a mixed-age interview panel whenever possible.
5. Apply the same evaluation criteria for all job applicants, regardless of age.
6. Be sure that everyone who interviews candidates is familiar with age discrimination laws.
7. Avoid asking older employees information such as when they plan to retire.
8. Avoid encouraging older employees to retire.
9. Don't eliminate one job to lay off an older worker and then create a new job with the same duties and hire someone younger.
10. Avoid making such age-related comments or jokes regarding older employees' physical abilities, mental acuity or personality traits.
11. Place job advertisements where they'll reach workers of all ages.

Job Notices and Advertisements

The ADEA generally makes it unlawful to include age preferences, limitations or specifications in job notices or advertisements.

A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" reasonably necessary to normal business operations.