Five Tips for Avoiding Age Discrimination

By Allen Smith Oct 7, 2014
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“Most managers are not actively trying to weed older workers out of the workforce,” according to Dana Connell, an attorney with Littler in Chicago. “But they sometimes factor in age without really thinking about it, or make decisions in a way that makes it appear that age is a factor, even when it’s not.”

In an interview with SHRM Online, Connell recommended five steps to avoid age discrimination claims and liability.

  • Offer severance packages with releases to employees who have been terminated in a reduction-in-force, and ensure the releases are valid under the Older Workers Benefit Protection Act. This step “has certainly—more than anything else—impacted the number of age discrimination claims you would otherwise see,” he remarked.

  • Employ a disciplined approach to reductions-in-force that avoids a subconscious lower ranking of older employees. “Development of criteria, and a consistent application of those criteria, to make those difficult decisions is a better approach,” Connell added.

  • Send the right message from the top. Business leaders should not only avoid ageist comments, they should set the tone that the company needs to keep its best people, not that it needs to get rid of the “good old boys.”

  • “Watch for, and eliminate, comments that might be viewed as age-related in all performance documentation.”

  • Train about age discrimination and stereotypes. “No manager should ever be in the position where he/she might testify that he/she was not aware that it is illegal to discriminate on the basis of age,” he said. “That is what happened in Mathis v. Chevrolet, 269 F.3d 771 (7th Cir. 2001), and the court there stated that leaving managers in ignorance of basic features of the ADEA [Age Discrimination in Employment Act] is an ‘extraordinary mistake’ for an employer to make.”

Training

Age discrimination most frequently comes up in the context of terminations and failure-to-promote cases, remarked Terri Imbarlina Patak, an attorney with Dickie McCamey in Pittsburgh. Failure-to-hire cases are rare. To avoid age discrimination claims, she recommends employers train workers on diversity and discrimination—training that she says has “fallen by the wayside. 

Being serious about diversity goes a long way” to fend off claims. And don’t just train on age discrimination, but train about all forms of discrimination, she advised.

“It all goes hand in hand,” she said, adding that, “You don’t just see one basis when a claim is filed, but instead see age, race, gender, disability claims at the initial administrative stage.” 

Training must address stereotypes and hidden blind spots in a manager’s or supervisor’s decision-making process, Connell added. “Simply lecturing people on do’s and don’ts will not be sufficient. Case studies that are interactive, challenging and have lots of grey areas work best.

“The danger zones for employers have to do with age stereotypes: any belief or assumption that age has a negative correlation with energy, initiative, commitment, imagination, flexibility or—perhaps the biggest stereotype of all—the ability to learn new technology,” Connell added. 

Do the smart thing, he recommended, and “continue to give older workers tech-oriented opportunities, as well as necessary training to keep up-to-date with the latest technologies.” Any decision that is made on the basis of such opportunities is then “based on real-life experience rather than stereotypes.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. ​

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