We are getting older as a nation of workers. And older employees are remaining employed longer than in years gone by. Age 65 no longer means a retirement party, cake and a commemorative clock to watch as the sunset years roll by.
Just as our own aging is unavoidable, the demographic wave of the Baby Boom generation is having its own inevitable effect. Consider some statistics from the Census Bureau:
In 2000, our country had around 3.4 million employees age 65 and up; in 2009 there were 6 million. The percentage of all Americans in that age range who remained employed increased from 11.5 percent in 2000 to 16.1 percent in 2009.
Between 2000 and 2010, the number of Americans age 55 and older increased from 59.5 to 76.5 million. Government projections say there will be 97.8 million Americans who are 55 or older by 2020.
If demographics were not enough to age our workforce, the bad economy has made seniors hold on to a steady income longer than they had previously planned.
As statistics would predict, the advancing age of the workforce has resulted in a corresponding increase in litigation over age discrimination. According to their own published statistics, the EEOC fielded 16,008 charges of age discrimination in 2000 and 23,264 in 2010, an increase of 45 percent. On behalf of claimants, the EEOC helped obtain settlements of $45.2 million in 2000 and $93.6 million in 2010, an increase of over 100 percent. Litigation numbers trended in the same ways and resulted in far greater costs to business, both in fees and damages paid.
Of course, all discrimination claims have increased since 2007, as many employees lost jobs across all sectors of the workforce. With fewer opportunities for re-employment, those out of work have resorted to suing at a higher rate than usual. For older workers, finding a new job can be even harder, contributing to the tendency to seek aid through litigation. And, as companies downsized in the past few years, higher wage earners who were generally older tended to be disproportionately affected. So, the pool of plaintiffs has grown and is weighted toward an older population.
Age discrimination claims are particularly dangerous for employers. Jurors sympathize with age. In race claims, white people on the jury might not fully understand what it means to be black. In gender claims, male jurors cannot truly place themselves in the shoes of a female plaintiff. Same with disability claims. But everyone can more closely feel what it means to be old. Even a younger juror might think, “I would not want someone to treat my mom or dad that way.” Or, “I will be the plaintiff’s age one day, and I sure hope no one fires me and leaves me unable to find another job.” Age claims land closer to home for each and every juror, and jurors are more likely to protect those with whom they personally connect.
Further, as a very general matter, people more readily believe that an employer will treat someone differently because of age than because of race, gender, religion or disability. It might not be true, but people believe it.
So, more workers are older, more older workers are suing for age discrimination, sympathies often lie with older workers, and jurors are more prone to believe age discrimination occurs.
Odds are, then, that you will face an age discrimination claim, either actual or threatened. These claims most frequently arise in two scenarios: (1) discipline or discharge due to performance or conduct, and (2) discharge due to a reduction in force.
As with any other discrimination claim, proof of bias requires either some direct evidence that reveals bias—a manager’s age-related comments, for example—or some indirect evidence from which courts will allow a jury to infer bias. Avoiding direct comments is obvious enough, but preventing inferences of bias is much more difficult. Consider a few areas where cases are lost.
Inadequate Performance Evaluations
Managers often tend to go easy in evaluations, avoiding today’s conflict and putting off difficult conversations. Some do not even conduct regular evaluations, leaving an employee surprised when poor performance is the reason for discharge. Frequently in reductions in force, managers are asked to rank their most valuable employees. When rankings do not fit well with what the personnel files say about historical performance, an employer appears inconsistent and not credible. If after years of decent reviews, a 55-year old is among those included in a downsizing, a juror will be suspicious if the employer cites poor performance as a factor in deciding not to keep him employed.
Simply, employees need to know how they are performing, and employers need to be honest and timely with that feedback. Those practices are good not only for productivity but also for legal protection. Do not create your own worst documentation by giving a favorable evaluation to an employee who has not earned it.
Poor Documentation of Bad Behavior
Employers regularly rely on past misbehavior as a basis for today’s discharge, typically as part of following a progressive disciplinary policy. Often, though, no one documented the previous issues, even though management remembers them and knows they occurred. When the employee remembers it differently, a factual question of what really transpired will arise; and fact questions like that are often left for a jury to resolve. If an older employee can contest the employer’s version of his work history by pointing to a lack of confirming documentation, an age case can be difficult to dismiss before trial.
Inconsistent Application of Policies
Different treatment of employees in different protected categories (here, older v. younger) is the classic basis for a discrimination claim. Thus, for example, allowing a younger employee to slide by when he violates an attendance rule means risking an age discrimination claim when firing an older worker for too many absences. Tolerating offensive language from a worker in his twenties but not from one in his fifties will interest an EEOC investigator or a plaintiff’s employment attorney. The need for consistency is fundamental—everyone knows it—but managers nonetheless bend rules all the time to fit individuals and circumstances. Train supervisors to document rule violations and to explain why any accommodations or extra chances are granted. Even then, relying on a frequently-bent rule to justify firing an older worker may not hold up in court.
Careless Discussions of Retirement
Mandatory retirement is against the law; few exceptions exist. Without any firm, mandated date in place, employers may be in the dark as to what an employee’s plans are. Having these communications is tricky, as no one wants to make age-based comments an employee might later claim indicate bias. Discussing matters in terms of the employee’s commitment to remain with the company can convey a desire to keep the employee instead of suggesting an interest in moving him out.
Not Recognizing the Harm of Ageist Remarks
Comments about someone’s race, gender-based jokes, expressions of religious intolerance—these bring HR rushing to the scene to mete out punishment. We reject such remarks not only because they are inappropriate, but because of their implications for bias claims by unhappy employees, current and former. But, do we act so quickly when someone is referred to as the old guy? As the senior citizen of the office? What about less direct remarks like being past his or her prime? No longer having the same passion? Espousing tired or worn out ideas? These comments are not so socially unacceptable, but they are dangerous from the perspective of employment law. Whether an accurate indication of bias or not, they can absolutely sink a defense to an age discrimination claim.
Missing Opportunities for Severance Agreements
Severance agreements for older workers can effectively reward their years of service, offer a transition to reduced earnings, and prevent discrimination claims. Waivers of age claims are possible, but they require very technical language, a waiting period, advice to consult an attorney, and time to revoke. Extra requirements apply in a reduction in force. Missing the window to accomplish an enforceable waiver and release can be costly down the road.
Ultimately, when it comes to preventing successful age discrimination claims, there is no silver shield. The best defenses are the good, honest and thorough HR practices that all employees deserve—young or old.
Click here to view the full digital version of the The Boomers & Beyond edition of SML Perspectives.