A Perfect Storm for Age Discrimination Claims

A “graying” workforce, combined with a slow economy and hefty settlements, signals rough waters ahead for employers who discriminate against older workers

Posted by Dawn Lomer in Discrimination, Employment Law, Human Resources on February 9th, 2012

Age discrimination lawsuits are on the rise, and it’s not surprising, given the somewhat young age (depending on your perspective) at which workers enter this protected class. In fact a record number of age discrimination claims were filed with the EEOC last year.

Chalk it up to a collection of things. Firstly, the workforce is getting older and so a large percentage of them now fall into the age protected class. “People are generally surprised to hear that if you’re over the age of 40 you’re officially old,” says Mark Toth, Chief Legal Officer, North America, Manpower Group.

Add to that, the fact that there have been a few big settlements recently, creating more incentive for others to sue. And then there’s the high unemployment rate. The more people you have unemployed the more likely they are to sue, says Toth. “And if you lose your job and can’t find another one the damages go up. There are statistics showing that the one thing that goes up when the economy goes down is lawsuits. So add all that up and it’s kind of a perfect storm for age claims,” he says.

Sympathetic Jurors

Age discrimination claims are turning out to be among the toughest for employers to win. Toth points to the aging population being represented on juries deciding these cases as one factor. “Juries have a lot of folks in that category so they [employees] may have a more sympathetic ear,” he says. So employers need to be very careful about how the things they do and say are perceived.

“I think a lot of the time people say things in the workplace that they don’t realize may have a negative perception and/or be ageist,” says Toth. “You see this all the time in birthday party celebrations, where people write things they think are humorous about people getting old; they joke about getting older. It’s more accepted in some ways than other discriminatory comments.” And while birthday jokes might not spark a lawsuit, there are other cases where words can get employers into trouble.

3M’s $3-Million Mistake

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“Stray remarks… typically aren’t enough for an age claim, but the more of those that are out there the more likely you’ll be sued,” says Toth, “especially if it’s coming out of the CEO’s mouth and especially if it’s in written memos.”

Toth mentions the recent 3M case where the CEO was making statements about needing to have a “youth movement” and a vision for leadership development targeted “30-year-olds with General Manager potential”.

“I’m sure those were well-meaning comments but when you say things like that, when you’re the CEO, that [provides] pretty good evidence.” In this case, it cost the company $3 million.

Appreciate Wisdom

So what can employers do to ensure they don’t end up in a 3M-style tempest?

“Know the law,” says Toth. “Most people are savvy enough these days not to ask someone for their birth date with the year in it, although there have been some cases where HR folks still have some of that stuff in their official documentation in ways that isn’t smart.” Especially in official written communication, you should make sure that you don’t have any wording that could be seen as negative toward older workers and ensure that photos in marketing and collateral material depict a range of ages, he says.

“I would advise employers to be more sensitive to older workers and try to see the value in them. I think making assumptions is always dangerous, so employers should act on facts and try to see beyond someone’s age.”

In fact, assumptions about older workers being overqualified, not technologically up to date or only likely to be short-term are often way off the mark. “People are working longer and longer and a lot of them have more experience than others and a lot of knowledge, a lot of wisdom,” says Toth. Many older workers embrace the opportunity to learn new skills, and are capable of absorbing technology as easily as anyone.

“Employers need to think about the human impact of everything they do,” says Toth. “[Older workers] should never be discriminated against, treated poorly, or underappreciated, because they are a tremendously valuable asset for any company.”

Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.