Avoid age discrimination suits
s I write this, I am
on a plane returning from the Dominican Republic to Miami.
While in the Dominican Republic, I watched the baseball
playoffs in Spanish, rooting for the Cubs and the Red Sox.
 | ||
Because I speak little Spanish, I did not
entirely know what was going on. It made me wonder, however,
how a labor lawyer would handle a fight between an older and
younger worker, especially where the older guy got the worst of
it.
Would it be age discrimination not to
punish the younger employee?
Should age matter in deciding what to do?
Because age discrimination has become a
very popular basis for suing employers, should an employer
avoid being sued by taking the side of the older worker?
As the workforce ages, employers are faced
with these kinds of questions every day. I have clients with
employees in their 40s, 50s and 60s doing the same job, at
various levels of competency.
What happens if the worst employees happen
to be the oldest, and there is a need to cut back?
You know that if the employees selected
happen to be the oldest, they will easily find a lawyer who
will claim age discrimination merely because the oldest workers
were chosen.
Selecting only young or younger employees
for layoff or termination under these circumstances is not an
entirely satisfactory answer.
In some states, age discrimination at any
age is unlawful; under federal law, age cannot be a selection
criterion for employees over 40. Choosing the 42-year-old over
the 60-year-old merely based on age could be illegal.
So, what do you do?
In the case I started this article with, I
would gather all the facts I could before making a decision.
You see, it turns out that 72-year-old
Zimmer charged Martinez, and the younger guy merely threw him
out of the way.
If a fight such as this took place in a
normal workplace, I might recommend discipline against the
older employee as the aggressor, and no discipline for the
younger employee who did not fight back.
Of course, this begs the question what to
do if the performance of an older worker starts to deteriorate,
or you need to cut back your workforce and the oldest workers
are the poorest performers.
It happens all the time, and it will
happen even more if, as the cover of AARP’s monthly
magazine says, 60 becomes the new 30. The workforce is aging,
and age can affect job performance.
I recommend that my clients have objective
standards to measure work performance.
If those standards are chosen wisely, it
should be a fairly easy task to rank employees according to job
performance. Showing up to work on time, putting out a certain
amount of work, and keeping a work area clean are factors that
an employer can evaluate and use to make employment decisions.
Once employees are ranked, age is removed
as an arguable factor in those decisions.
Finally, when it comes time to make a
decision affecting an older worker, be careful not to inject
age into the process.
Do not ask the employee to retire. It is
better to terminate the employee for poor work performance.
Do not mention the employee’s age,
even to say that “age was not a factor.” Don Zimmer
should be disciplined just like a ballplayer 40 years younger.
As I finish this article, it has been a
week since I got back from the Dominican Republic. The Yankees
and the Marlins are in the World Series. As I age, I am hopeful
that the Cubs or the Red Sox will someday beat their curse in
the coming years.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has
articles, sample policies, news and other information on
employee/employer relations.
 |