labor lawAdivision of labor law center

Employers implementing layoffs and staff reductions need to be especially cautious that they do not commit age discrimination.

 

According to a recent report, state and federal age discrimination claims were up 29% in 2008. This is almost double the increase in overall discrimination complaints, up 15%. And that number is not just complaints filed by workers – it is actual lawsuits filed by the EEOC or state agencies.

 

The federal ADEA or Age Discrimination in Employment Act, prohibits employers from discriminating against workers between the ages of 40 and 70 in any employment decision, including hiring, firing, promotions, salary, benefits, training, etc.

 

According to the EEOC, age should not be a factor in determining which employees are laid off. It is fairly common for an employer to thin, “Joe is eligible for retirement in a few years anyway, we’ll lay him off.” However, it is illegal discrimination based on age. Some employers take such actions because they think older employees will be impacted less by a layoff. Others do it to save potential pension and medical expenses. Either way, it is illegal.

 

According to a recent article in the AARP magazine, age discrimination claims may be even higher this year than in 2008, due to the many layoffs.

 

The AARP, of course, is the international association of people over the age of 50.

 

 “The wave is still building,” says Gerald L. Maatman, Jr. of Seyfarth Shaw,  a Chicago law firm that analyzes both state and federal discrimination suits against employers. It is expected to peak in the 3^rd quarter of 2009.

 

Employers should always base decisions on which employees to lay off on objective criteria that do not include age. Acceptable criteria include job performance, seniority, diverse skills or a combination of those factors. Employers should justify that decision in writing, and keep careful written records of the basis for the decision.

 

It is also illegal for an employer to discriminate against one older worker in favor of another older worker. A recent trend has been for employers to lay off workers in their 50s, in favor of workers in their 40s, based partly on age. Although both workers are covered by the ADEA, this is still age discrimination.