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'Renewed Attention' to ADEA

As the Age Discrimination in Employment Act reaches its 50th anniversary, legal experts warn employers that three recent cases could portend an uptick in age-related suits.

Monday, November 13, 2017
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As many baby boomers continue to work into and throughout their 70s, it would make sense that the number of age-discrimination suits being filed would be increasing.

But it's not really. During the past several years, the number of such lawsuits has remained fairly steady. Of the 86 discrimination court cases filed last year by the Equal Employment Opportunity Commission, only two alleged discrimination based on age.

But that may change, as the EEOC is commemorating the 50th anniversary of the Age Discrimination in Employment Act of 1967 by "bringing renewed attention to age discrimination," according to the federal agency's website. With that in mind, here's a look at three age-discrimination suits filed within the past four years. The first involves Spirit AeroSystems, a supplier for Boeing, that laid off nearly 360 workers in 2013. The suit claims that nearly half were at least 40 years old and some were let go because of serious medical conditions suffered by them or their spouse. After the layoffs, according to the suit, Spirit held a job fair seeking workers to employ in positions similar to those that were just eliminated.

In response to these charges, Spirit states that " . . . it does not discriminate in its employment practices, including hiring and termination decisions. The company takes that responsibility very seriously. Reductions in force are never easy, however all decisions are based on job-related, non-discriminatory criteria. We are confident the evidence in this case will show Spirit is compliant with the law in its employment practices."

Another case involves Keer America Corp. The EEOC complaint says a 47-year-old employee worked at the company for roughly two weeks when the plant manager saw the employee's driver's license and learned of his age. The plant manager asked HR to rescind the job offer. HR refused, so the plant manager fired the employee.

The last one is a class-action lawsuit -- involving 269 job applicants -- against Google. According to the suit, Google recruiters asked some applicants to disclose their graduation http://magcdn.lrp.com/MAGDATA/servlet/DataServlet?fname=ThinkstockPhotos-673833502ADEAL.jpgyears on their applications so they could determine their approximate age and later used it to discriminate against them.

Neither Keer nor Google offered any comment upon request.

"One of the problems we see in age-discrimination cases is when an organization wants to save money [and] eliminates higher paid positions," says John Gilbert, an attorney who heads the labor and employment team at Sandberg Phoenix & von Gontard, a law firm in Edwardsville, Ill. "Generally, that's going to impact employees who have been there the longest and those are generally older employees."

Unlike other anti-discrimination laws, he says, the age law requires "but for" causation to win a case. If the employer can establish that the employment action was taken for any reason other than age, then the employer will win, says Gilbert.

Although HR professionals are not always aware of discriminatory comments or decisions made by managers or even senior management, there are warning signs.

Maybe one manager demonstrates a pattern of only promoting young workers. Another may tell older employees, "Once you get past 60, you should retire." Even certain words or phrases routinely used by management like, "We want a fresh or young approach" can create the perception of ageism, adds Edson McClellan, partner and chair of the labor and employment department at Rutan & Tucker law firm in Costa Mesa, Calif.

One way HR can discover if ageism exists in the workplace is by examining employee demographics. Who's been fired or laid off? If concerned about a department, he suggests getting a breakdown of employee ages. What's the average age? How many workers are below and above that age? Is there a pattern of pushing people out the door once they hit a certain age?

But asking what year job candidates graduated from school should be taboo.

"It's not a problem if one recruiter does it but it everybody else asks the same question, then it raises the question why?" McClellan says. "Who was asking and why? Was it coming from above?"

He believes the plaintiff in the Keer America suit will have an uphill battle proving ageism. Most age discrimination cases involve employees over the age of 60. He says it's uncommon for any 47-year-old to be the victim of age discrimination since most of the time, that employee has an older boss.

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"I wouldn't be surprised if [Keer] has another explanation," McClellan says, adding that roughly half of his age discrimination cases are also attached to disability discrimination cases. "Make sure that you have your ducks in a row and the reason for termination is properly documented ahead of time."

Likewise, no company is excused from hiring younger individuals shortly after laying off older workers for similar positions, says Lisa Von Eschen, partner at Lamb & Kawakami in Los Angeles.

"If you let people go who are in a protected age group and replace them with younger people, you've made a prima facie case of age discrimination," she says. "By asking them to reveal their graduation date, [companies] are also making an effort to determine their approximate age. They would need to show a business-related reason for needing that information."

Surprisingly, she says, some companies still have policies in place about mandatory retirement age. They don't realize it's problematic, she explains. So are "veiled" comments managers make to older workers during performance reviews and social gatherings or outings -- like whitewater rafting -- geared more toward young employees.

While it's important to train all employees about ageism, Von Eschen says managers and supervisors should receive additional sensitivity training to ensure they recognize and ban stray or hurtful comments that could create a hostile work environment.

HR can also encourage employees to report any age discrimination experiences. In some cases, she says, it ends up being a small matter that HR can easily resolve, helps avoid litigation, and develops a better workplace.

"If there are avenues for reporting, it shows that the employee had a means of doing so," she says. "If they choose not to, remain silent and bring a lawsuit, it can bring their motivation into question."

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