Don't Get Sued for Age Discrimination

Article excerpt

Joe, one of your longtime press workers, is showing signs of failing health. He moves more slowly, has trouble climbing stairs, and has developed a painful limp.

One of your supervisors has counseled Joe a half-dozen times over the past six months, advising him to quit for his own good. Several times you have even offered Joe a very attractive retirement deal.

One day you walk into your newspaper office to discover that Joe has filed a wrongful discharge suit against your company. This, despite the fact that you never really fired him.

Does he have a case?

Yes. Continual counseling of an older worker such as Joe constitutes harassment. It can support a lawsuit for "constructive discharge." That is an attorney's term for the act of making an employee's work environment so unpleasant that he is forced to quit. Even the attractive retirement package does not get you off the hook. Further, you may not fire someone for health reasons unless you can make it clear that the employee's performance has been affected.

Joe is protected under the laws that protect workers against age discrimination. He is not alone in his grievance. In 1991, employees filed 27,748 such complaints at the Equal Employment Opportunity Commission and at state agencies. That was a 19% increase from the year before, and observers expect it to keep growing.

"We haven't reached the full potential in terms of age-discrimination lawsuits or problems that can be expected by management," says James N. Adler, a partner with the Los Angeles law firm of Irell & Manella.

Why? The work force in general is getting older. As they pass the age of 40, they are protected by the federal Age Discrimination in Employment Act.

"Once the baby boomers start hitting that age we will see even more claims," says Cathy Ventrell-Monsees, manager of worker equity at the American Association of Retired Persons.

Employers are getting the word. In 1991, the AARP filled 105,000 requests from businesses for its helpful pamphlet, Age Equity Checklist. That was up by 150% over the previous year.

While lawsuits for discrimination in the areas of sex and race are also prevalent, those for age discrimination are much more likely to be won by workers.

"All jurists relate to age," explains Jeffrey M. Bernbach, a New York attorney who specializes in discrimination cases. "A person is either old or has parents who are old. So everybody can sympathize with an age plaintiff, whereas I am not sure that a man can put himself in the place of a woman, or a nonminority in the place of a minority."

Furthermore, when you lose an age-bias case you find that the penalties are much higher than for sex or race or religious discrimination. The amount is based upon the earning history of the plaintiff and the amount of time the plaintiff is out of work. Both of those numbers are apt to be higher in an age-bias suit.

"Age-bias plaintiffs tend to be older white males at a later stage in their careers, and that elevates the damages," says John J. Donohue III, a professor of law at Northwestern University in Chicago.

Finally, employers who are found guilty of willfully violating the federal age-discrimination law are fined double damages.

What is "willful violation"?

The definition varies by court case and by state, but here are a couple of cases that led to successful charges of willful violations:

In one case, a memo from the plaintiffs personnel file said, "Joe is too old for the job . . . "

In another, an employer had requested guidance from an attorney for formulating employee policies, then had ignored the advice when received.

There are legitimate reasons for terminating older workers. "The act does not insulate people who are over 40 from legitimate business actions," says Joseph Cleary, assistant legal counsel for the EEOC. …