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Employment Policies Can Lead to Claims of Age Discrimination
Knight Ridder News
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October 9 , 2005
AKRON, Ohio - Organizations often make employment decisions based on "the need for new blood" or promote someone because of her "fresh ideas and energy."
But what might seem to be a harmless cliche could be construed as code for a policy that favors younger workers. And that is against the law.
A recent U.S. Supreme Court ruling made it easier for workers to sue for age discrimination.
Now, attorneys are warning employers to examine their policies to make sure they aren't unwittingly discriminating against older workers and leaving themselves vulnerable to claims.
"As Gen Xers start replacing baby boomers in jobs, this is becoming a greater issue," said John Susany, a labor attorney with the Akron firm Stark & Knoll. "The practical advice is, you need to review your policies with your HR people and your lawyer and project how they will impact the aging workforce."
Last year, 72.8 million workers - more than half the American workforce - were age 40 and older, according to the Bureau of Labor Statistics. And that percentage is growing.
The number of age discrimination claims filed with the Ohio Civil Rights Commission has risen 5 percent over the past five years.
Susany said he expects that trend to continue, particularly in the wake of the Supreme Court decision Smith vs. Jackson, Miss., which established that employment policies that have a disparate impact on older workers can be found to be discriminatory. In other words, employers can be guilty of age discrimination even if it is unintentional.
G. Michael Payton, executive director of the Ohio Civil Rights Commission, said he doesn't agree that the ruling will have a significant effect on the workforce.
"The theory (of disparate impact) itself is nothing new," Payton said. "It doesn't mean there is cause for alarm in expanding liability."
The theory of disparate impact - that a policy that seems neutral to the letter, but indirectly has a detrimental impact on a protected class - is often applied to other types of discrimination cases.
For example, a police department's policy to hire only people who can lift 300 pounds doesn't appear to be discriminatory. But the rule has a disparate impact on women, who may not be able to lift as much weight as their male counterparts, but are just as qualified for the job.
A similar argument could be made for older workers, who might not have the stamina or strength of their younger colleagues.
The key to defending any employment policy is proving business necessity, Susany said. If workers must lift 300 pounds in order to perform the duties of the job, employers would not be violating civil rights laws to require that ability.
Susany said the downsizing process poses many potential problems for employers.
"Any time you fire or lay off a person who is over 40, that person is a potential litigant against you," Susany said. "If most of your workforce is over 40, you've got a lot of potential plaintiffs."
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