Most employers recognize their obligation to avoid discriminating against their employees based on sex or race, and are careful to include policies in their HR manuals that directly prohibit harassment or other forms of discriminatory treatment. One group, however, that feels increasingly discriminated against – and is not usually specifically addressed in employer policies — is the elderly. Elderly people often strongly believe that their age puts them at a disadvantage in the job market.
What is interesting is that statistically the elderly are actually less likely to lose their job than younger people are, but they are more likely to have difficulty getting another job if they are fired.
One of the difficulties facing elderly workers who feel that they have been discriminated against is that the bar for proving these cases was raised in 2009 when the Supreme Court decided the case Gross v. Financial Services Inc. As a result of that case, a plaintiff in an age discrimination lawsuit must prove that age was the sole motivating factor for the adverse employment action, instead of having to simply prove it was one of the factors (which was the previous standard).
Because of this, it’s very difficult for a plaintiff to win an age-discrimination case, but employers should still be cautious when disciplining or terminating older workers. Because elderly people feel like they are often discriminated against, an employer should be careful to not appear to be taking age into consideration when hiring or firing. It’s hard to win an age-discrimination case, but because elderly people often feel victimized, they’re very likely to try. The best tactic is to always avoid even the appearance of discrimination. Remember, the object isn’t to win lawsuits (after spending significant legal fees and costs, and disrupting your business operations); the object is to avoid being sued in the first place.
And it’s not only the elderly who perceive age discrimination in the workplace as widespread. Congress views age discrimination as a real problem, especially in light of the Supreme Court ruling. In May, Congress held a hearing about age discrimination, and one proposed bill would return age discrimination cases to the old standard. Because of this, it’s very possible that changes in the law will make it easier for age discrimination cases to succeed. You should be prepared. It’s always good practice to take every step to avoid appearing discriminatory, because the laws can change, and the fewer people accuse you of discrimination, the better.
Read more about the proposal and the hearing here: