Avoid age discrimination troubles

Given the number of workers vying for opportunities in today’s tight job market, it is more important than ever that employers follow best practices in hiring, firing and disciplining employees.

In June, the U.S. Supreme Court decided that employees suing due to age discrimination must prove that age alone was the reason for an adverse employment decision. Proving age discrimination has never been easy and this ruling will make it even more difficult for employees to win cases against employers.

There is a strong chance that Congress will challenge the ruling and age discrimination is likely to become the next hot button in business. Regardless of the outcome, no business can afford to spend time and resources fighting an age discrimination charge. It is also in a company’s best interest to employ a diverse group of workers and treat them fairly.

The graying of the workforce

There was supposed to be a shortfall of experienced workers as millions of baby boomers reached typical retirement age of 62, but boomers are remaining in the workforce longer than expected. Many choose to stay active and productive in their careers, but some have no option but to continue working. Instead of a labor shortage we have millions out of work and a national unemployment rate of 9.5 percent, the highest in 20 years.

Employment specialists have long predicted that our graying workforce would lead to an increase in age discrimination charges. The Equal Employment Opportunity Commission’s annual report showed that age discrimination cases spiked 25 percent from 2007 to 2008. The EEOC expects such claims will continue to rise as a result of economic conditions, increased diversity and demographic shifts, as well as employees’ greater awareness of the law.

The Age Discrimination in Employment Act of 1967 prohibits employers from discriminating against employees or job candidates on the basis of age. This law covers workers who are 40 years of age and older and it applies to employers with at least 20 workers.

Under ADEA guidelines it is unlawful for employers to make hiring decisions based on age nor can they discriminate based on age when recruiting, advertising, or testing job applicants. Employers cannot fire a worker or use age as a basis for making other employment-related decisions, if the decision negatively affects a worker’s status or deprives a worker of opportunities. An employer can take age into account if there is a bona-fide reason that age is a necessary requirement for the operation of the business.

Doing what’s right for the right reasons

Employers aren’t likely to follow the letter of the law until they embrace the spirit of the law. For example, some companies have recruitment processes and candidate ranking systems specifically designed to prevent bias. But hiring teams can rig these systems to hire the person of their choice rather than the most-qualified candidate.

Granted, “most qualified” is not always the “best fit.” A hiring team could opt to select the next best candidate if the “most qualified” shares imminent plans to go back to school, but age is not a valid and legal reason to select the next-best candidate.

The same is true for managing performance or layoffs. Managers may “pad the personnel file” with documentation to support a hasty termination or disciplinary action. If you find yourself documenting issues after the fact to avoid possible legal ramifications, you are putting your organization at risk.

This is one clue that you are letting biases dictate your actions or that you don’t have proper performance management or progressive discipline procedures in place to prevent discrimination.

Employers often do what is right “on paper” when they are actually fudging and finagling their way through employment-related decisions. Leaders must believe that a diverse workforce with employees of all ages offers a competitive advantage. An underlying commitment to the fair treatment of all people must form the foundation of an organization’s polices and procedures.

Let performance be your guide

While the ADEA protects workers over 40, people of any age may experience discrimination in the workplace. By being performance driven you can avoid even the appearance of discrimination when dealing with employees.

Employers need not fear disciplining or terminating older workers as long as it is for performance-related reasons and not due to bias. Document the steps taken and the reasons for your decisions throughout the process.

When performance guides decision making, your entire organization benefits. Poor performers receive the feedback and support necessary to make improvements. They either improve or move on to jobs that are a better match for their skills.

When poor performers are disciplined or laid off, remaining workers get a real sense that leadership is paying attention. Strong performers feel appreciated and noticed. This, in turn, motivates excellent employees to keep up the good work.

Performance-based actions send a positive message to workers of any age that you are acting legally, professionally, and in a manner that is beneficial to individual employees as well as the organization at large.

Wouldn’t most people prefer to work for employers who treat workers, young and old, with dignity and respect because it is the right thing to do, and not simply because is required by law?

Carrie Pinsky also writes the Business Route Less Traveled blog at www.ncbr.com.

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