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Trends - they come and go. Some are fast while others are slow. Some are irrelevant to the times, while other are relevant and as a result have a huge impact on society. According to an article by Lexis Nexis’s Corportate Counsel Advisory, Law is in the midst of an evolution thanks to two trends: an aging workforce and the upheaval in the economy during the last several years.
According to AARP, 1/5 of the U.S. workforce is age 55 and older and about 64% of those workers say they have experienced or seen age discrimination in the workplace.
In 1967, Congressed passed Age Discrimination in Employment Act (ADEA) to protect individuals 40 years old and older from discrimination in the workplace based on their age. Along with ADEA, the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. § 626(f), was enacted to prohibit employers from denying benefits to older workers.
Employers face damage awards higher than other types of discrimination claims because older employees tend to be better paid. Employees who file age discrimination claims are seeking compensation for being turned out of what might have been their last, best chance for the highest wages they might earn in a lifetime. Juries can be highly sympathetic to plaintiffs in age discrimination claims. Recent awards in age discrimination cases have proven to be hefty hauls and can be seen in the following case:
Prefach v. Franklin Care Center (Superior Court, Middlesex County). May 2014, a New Jersey jury awarded $1.7 million to a 59-year-old nursing home office worker who was terminated from her job. Awarded: $1.7million ($1.5 million for punitive damage included)
Age discrimination can be proven with evidence of not just bias but inferences of bias. So how do you (the employee) or the employer protect yourselves from potential liabilities? Just keep the following in mind regarding ongoing policies. They should include the following:
1. Management Training Managers should be trained to avoid making statements about an employee’s age or retirement status. Making statements such as “being too old to learn new tricks” or “not keeping up with younger employees” or “past her prime” can be circumstantial evidence of age discrimination and have held the managers liable in past situations.
2. Accurate Performance Evaluations Give honest work evaluations. By doing this it gives both sides an extra layer of protection. For example, if after years of sterling performance reviews, an older employee is terminated for poor performance, claims of age discrimination become more credible to a juror. On the other hand, if an employee consistently underperforms, termination for poor performance is understandable, regardless of age.
3. Avoidance of Workplace Policies With a Disparate Impact on Older Employees Avoid any polices that seem directed toward a certain age. There should be no policies which hint or show preferences toward any age range. Instead, they should be held to the same standards and rules as younger employees.
4. Releases in Severance Agreements If there is a layoff, severance agreements should contain releases specific to the ADEA and the OWBPA. The ADEA requires that the waiver specifically refer to the ADEA claims, a seven-day revocation period, an encouragement to seek legal advice, and consideration as to a work benefit that the employee is not already entitled.