Age Discrimination

IN THE NEWS – FOCUS ON OLDER WORKERS

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:

http://www.floridatrialattorneys.net/blog/2012/04/congress-proposes-new-bill-to-reverse-limiting-age-discrimination-decision.shtml

http://www.huffingtonpost.com/2012/05/15/age-discrimination-unemployment_n_1518591.html

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

IN THE NEWS – SUPREME COURT RULING PUTS THE BURDEN ON EMPLOYERS TO PROVE POLICIES IMPACTING OLDER WORKERS ARE “REASONABLE”

In a decision hailed by employee advocates as a triumph, the U.S. Supreme Court ruled yesterday that in age discrimination cases the employer bears the burden of proof that employment decisions having a “disparate impact” on older workers are based on a reasonable factor other than age.

Three years ago, in March 2005, the Supreme Court ruled in the landmark case of Smith v. City of Jackson that the Age Discrimination in Employment Act (“the ADEA”) protects workers when an employer implements a policy which, on its face, has nothing to do with age, but in practice disproportionately impacts employees over age 40 in a negative way. (Notably, this marked a significant change for Florida employers because until that ruling, federal courts in Florida had held that the “disparate impact” theory was not applicable to age discrimination cases. To win a case, an ADEA plaintiff had to prove the employer’s alleged discriminatory policy was intended to harm older workers.) In Smith the Supreme Court held that such claims were in fact actionable under the ADEA, but did give the employer a “safe harbor” for their policies. Once an employee was able to show that the policy did in fact have a disparate impact, the employer could avoid liability by bringing forward evidence that the policy was based on “reasonable factors other than age,” a standard referred to by the Court as “RFOA.”

By requiring only an RFOA in the Smith case, the Court gave employers an advantage they did not have in disparate impact cases that traditionally arose in the contest of sex discrimination claims under Title VII of the Civil Rights Act. It has long been held that to avoid liability for a policy that has a disparate impact against a protected class under Title VII, the employer must show that the job requirement is a “bona fide occupational qualification,” referred to as a “BFOQ.” The classic examples in those early cases were height and weight restrictions which disproportionately excluded women from jobs as firefighters, but were held to be BFOQ’s because a certain minimum height and weight was deemed necessary to the ability to carry an overweight, unconscious victim out of a burning building. By interpreting the ADEA as requiring a lesser standard – the reasonableness standard of the RFOA instead of the absolute job necessity standard of the BFOQ – the Court made it much easier for an employer who was not intentionally discriminating to defend policies that had a disparate impact on older workers, so long as those policies were otherwise reasonable.

The question that remained after the Smith decision, however, was what happened procedurally after the employer brought forward evidence of the RFOA? To prove discrimination, did the employee have to prove that the employer’s asserted justification for the policy was in fact unreasonable? Or did the employer have the burden of proving that it was reasonable? While this distinction may appear at first blush to be a minor question of semantics, the question of who has the burden of proof can drastically change the outcome of a trial.

Until yesterday, federal courts were split on this issue. The Supreme Court has now resolved the question in Meacham v. Knolls Atomic Power Laboratory, holding that the employer must not only bring forward evidence that its policy was based on an RFOA, but also prove that the factor relied on is a reasonable one.

What this case means as a practical matter for employers is that care should be taken to examine any policies that appear to disproportionately impact older workers, and be prepared not merely to articulate a reasonable, nondiscriminatory basis for that policy but also to prove that the policy is reasonable.