Elizabeth A. Semler
503.243.1661 x 264

Employers: What's Age Got To Do With It?

September 2010

Elizabeth A. Semler
503.243.1661 x 264

Published in The Daily Journal of Commerce, September 2010

Think 76 is too old to work as diesel mechanic?  60 is too old to teach English as a second language?  Think again. 

Recent Equal Opportunity Employment Commission (EEOC) settlements provide an important reminder to employers to judge employment candidates objectively.  In EEOC v. Southern Metals Co., Southern Metals agreed to settle an age discrimination claim based on its failure to hire a 76-year-old man as a diesel mechanic because of his age.  The rejected candidate was fully qualified to perform the job; however, the employer told him they decided to hire someone "younger."  Similarly, in EEOC v. Community College of Baltimore, the College failed to hire a 60-year-old employee for an open position as a part-time English as a Second Language advisor based on her age.  The College was not only fined $50,000, it also had to provide training on age discrimination to its managers.  

Employers not only need to be careful when hiring, but must also make sure to apply objective criteria when terminating employees.  In particular, where older employees are replaced by younger employees, Employers must be very sure that the termination decisions are performance based or otherwise rationally tied to business needs. 

For example, the EEOC recently entered into a consent decree with an Arizona company which required the payment of $250,000, based on the company's termination of 3 employees over 40.  The consent decree was entered after the 9th Circuit reversed a summary judgment ruling for the employer on the grounds that the employees presented triable issue of fact with respect to whether their terminations were age related.  EEOC v. Tin, Inc., No. 08-16749 (9th Cir. 2009).  Specifically, the 9th Circuit found that employees showed an inference of age discrimination because one older worker was replaced by an employee 15 years younger, but without superior qualifications, and because the other two employees' responsibilities were redistributed to employees more than 20 years younger than the terminated employees.  In addition, the Court found that supervisors made comments from which a jury could find they harbored discriminatory animus toward older workers (the comments included referring to the employees as "old" and indicating that the job was a "young man's game" and the company needed "young blood"). 

In 2008, there were 38.9 million Americans over the age of 65.  By 2030, there are expected to be 72.1 million Americans over 65, or 19% of the population.  As a result, employers will increasingly face issues related to age discrimination and must be prepared to handle such issues.   Employers should review hiring criteria and job qualifications to insure they are age neutral and, as always, maintain current job performance information on all employees to substantiate termination decisions.  Employers should also train supervisors and managers to understand age discrimination laws, and that comments about age and retirement, even if innocent, can be evidence of age bias.

Elizabeth A. Semler is a member of the firm's business litigation group and Chair of Sussman Shank LLP's Employment Law Group.  You can reach Elizabeth at (503) 227-1111 or lizs@sussmanshank.com

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