Thursday, July 12, 2012

age discrimination

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America in a series of high profile lawsuits since 16 for legal awards and settlements--not for race discrimination, not for sexual harassment cases but for age discrimination in the workplace. And, that amount does not include the formidable price tags for legal fees, managers¡¦ time and damage to the organization¡¦s public image Age discrimination is becoming more and more prevalent in the workplace whether we want to believe that or Age Discrimination

Two hundred million dollars and growing. That is the amount spent by corporate not. Many companies now have been known to lay off their older employees, only to later re-hire younger employees to fill the same positions. This not only saves money in salaries (the younger employees receive less in wages than the long-term employee does) but it saves the company from having to pay out retirement packages as well. Companies of course dispute that this is done, but the fact is we see it happening every day.

The Equal Employment Opportunity Commission (EEOC) protects against age discrimination under Title VII. Specifically, the Age Discrimination in Employment Act (ADEA), which was passed in 167 by congress, covers discrimination against employees who are 40 or more years old. This topic should be a big concern for employers. The number of elderly workers is increasing, as the baby boomers get older. It is estimated that as many as twenty percent of the claims filed with the EEOC are for age discrimination. Also, age discrimination settlements can be considerably higher than typical discrimination cases. One figure indicates between 188 and 155 the average award was $1,000. (www.ama.net) For this reason alone, employers should take care with how they handle their aging workers.

As mentioned above, the EEOC is responsible for enforcing the age discrimination regulations, including the ADEA of 167. This regulation is in effect supposed to ¡§promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment. (www.eeoc.gov).¡¨ The ADEA lays out the boundaries for age discrimination in all aspects of employment. It not only protects against discrimination for employees, but job applicants as well. Even job advertisements must not include age discrimination. For example, an employer cannot list in its job postings that it is looking for new college graduates because this would single out older, perhaps just as qualified, workers. Age discrimination is also unlawful in apprenticeship programs, pre-employment inquiries, and benefits. The ADEA applies to any company that employs more than 0 people, and age can only be a job requirement if it can be shown that it is a bona fide occupational qualification. This can be very difficult to prove.

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Understanding the many qualifications of the older worker has taken some time, but many of today¡¦s companies are beginning to realize the value of such individuals. Many aging workers are reluctant to retire at the standard 6 years of age. Some may have financial reasons, but others just want to continue to work. One problem that may bring up age discrimination cases is the downsizing of companies. Because of downswings in the economy, companies feel the need to downsize; and the older workers tend to be the majority of those let go. It may be through early retirement packages, but oftentimes companies keep the younger workers with less seniority that they may not have to pay as much. Once let go, the older employee often has a much harder time finding a new job.

Some cases of age discrimination that I came across while researching this topic include Parrish v. Immanuel Medical Center (Bennett-Alexander, p.418.), and Arnett and EEOC v. California Public Employee Retirement System (www.eeoc.com). Surprisingly, many of the companies referenced in age discrimination cases were big-name companies. Some of these included Westinghouse Electric, Northrop Grumman, Continental Airlines, First Union Corp., and Detroit Edison. The case involving Parrish and Immanuel Medical Center was filed by 66 year old Mary Ruth Parrish. She alleged that she was discriminated against because of her age after she returned from work from a leave and was told she had to transfer positions instead of returning to her former job. Originally she was a registrar and scheduled patient appointments. She was consistently given good performance reviews and was very accurate despite not being as quick as some of the other workers. In this case she needed to prove that she was qualified for the job and was able to meet all the legitimate job requirements. It was up to the employer to prove that the opposite was true. In this case the court found that even though the company alleged that Parrish was slow and not able to keep up with the new technology, they did not have the proof they needed. The case involving Mr. Arnett and the State of California was over the disability benefits the State was giving to Arnett. The court eventually ruled in favor of Mr. Arnett because it found that the more years in service, the less one was entitled to receive in benefits. This ruling also provided other public safety officers settlements for the reduced benefits they received. The total settlement was approximately $50 million. (www.eeoc.com)

The key for businesses is to minimize their risk for age discrimination lawsuits. It can be much less costly to prevent the lawsuit than to have to pay for a long and costly trial. What can a business do in terms of prevention? The first step is to be able to recognize age discrimination as an important issue. Then a company needs to look within and assess the culture and find out how the employees feel about how they are treated and how older workers are treated. Communication is key in how a business is run. The company should also research the regulations and how other businesses are dealing with the issue. If necessary policies, training, recruiting, hiring practices, and job descriptions may need to be thoroughly evaluated and possible revised. The time spent on documenting possible offenses may be better spent in preventing them. Overall, the morale of employees is what prevents claims. High morale and productivity is built by showing older workers that they are valued by the company and have a place in the environment.

References

Bennett-Alexander, D., & Hartman, L. (001) Employment Law for Business. (Rev.

Custom rd. ed., University of Phoenix). Boston Irwin McGraw-Hill.

The US Equal Employment Opportunity Commission. Modified on June 7, 00. Retrieved

February 1, 00, from Http//www.eeoc.gov.

Age Discrimination

Age discrimination is one of the most common forms of workplace discrimination that exists. Age discrimination in the workplace occurs any time that one worker is treated differently from another due to age, or another workers beliefs about age-related inability¡¦s. This report provides a definition of age discrimination, an in-depth analysis of the implications of the law as it applies to employers and employees, and a recommendation to assure that the employer is incompliant with the laws regarding age discrimination.

The company I work for employs, trains, compensates and promotes its employees without regard to race, color, religion, national origin, sex, age, handicap, veteran status or citizenship. This equal employment opportunity policy applies to all company operations. Although we places a high premium on compliance, there have been issues regarding age discrimination.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 167 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEAs protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment - including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments and training (Bennett-Alexander, D & Hartman, L 001).

It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA (retrieved March 1, 00).

The ADEA applies to employers with 0 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government (retrieved March 1, 00).

In April 16, in O¡¦Conner vs. Consolidated Coin Caterers Corp., a unanimous United States Supreme Court decision clarified the elements to establish a prima facie case (a case sufficiently strong that unless rebutted by the defendant in some fashion, it entitles the plaintiff to recover against the defendant) of age discrimination under the ADEA. The Supreme Court stated that the language ¡§does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older.¡¨ The Court also said that it is beneficial to plaintiffs claim of age discrimination if the plaintiff can demonstrate that he or she was replaced by someone significantly younger than he, as opposed to just being replaced by someone under the age of 40 was. An employee is able to sue an employer, if he/she has been discriminated because of age. The U.S. Supreme Court has ruled that a terminated employee can sue under the Age Discrimination in Employment Act even if their replacement is also 40 or older (Supervision, Vol.57, P.17).

Issues

With today¡¦s aging population there are compelling reasons for rethinking attitudes towards aging and how we approach age discrimination. With an increase in today¡¦s aging population, we will likely see more complaints of age discrimination in the workplace. Longer life expectancies mean people can work productively longer.

Older workers today will likely face stereotypical attitudes. These include assumptions that they are less ambitious, hardworking and dynamic and that they are more resistant to, or are unable to cope with, technological change. These attitudes will place older workers at an increased risk for discriminatory treatment.

Although some workers might fall victim to these stereotypical attitudes not all workers do. Employers need to follow laws regarding age discrimination but should not be punished when hiring a younger person who better meets the requirements of the company. With today¡¦s cutting edge technology and fast paced businesses, to stay competitive employers need to find not only qualified workers but workers who are adaptable to change.

Recommendations

In the progressive workplace of today, older employees with more traditional experience are often viewed as less adaptable than younger employees. When employers seek more recently trained employees, it¡¦s tempting to hire younger employees with lower salaries. It¡¦s also tempting to let go of older, more highly paid workers to decrease expenses further.

Employers and their Human Resource Department need to ensure that the company¡¦s policies, procedures and practices in regard to dealing with training, promoting, hiring and firing employees age 40 and over are in compliance with ADEA. These policies and procedures are guidelines that prohibit age discrimination.

Many employers do not have such policies and procedures in place to deal with age discrimination or any other discrimination. I would encourage employers to adopt policies designed to avoid age discrimination in employment.

My Recommendations to employers to avoid age discrimination are

„h Recruit on the basis of the skills and abilities needed to do the job.

„h Select on merit.

„h When interviewing never ask an applicant his/her age.

„h Job description should not be used as a tactic to attract younger workers.

„h Base promotion on the ability, or demonstrated potential, to do the job.

„h Encourage all employees to take advantage of relevant training opportunities.

„h Base redundancy decisions on objective, job-related criteria to ensure that the skills needed to help the business are retained.

„h Ensure that retirement schemes are fairly applied taking individual and business needs into account.

„h Consult with Human Resources before terminating older workers.

„h Be aware of terminating older workers during reorganization.

„h If you learn of an actual claim of age discrimination, recommend that your company seek legal counsel immediately.

„h Employers should understand the law of age discrimination to avoid potential claims.

¡§Although some forms of discrimination insurance are available to businesses, it¡¦s up to conscientious company professionals to prevent age discrimination from happening in the first place.¡¨ (Boston Business Journal, Vol. 18, P8)

In conclusion, the legal and economic ramifications of age discrimination are avoidable if companies are aware and conscientious of the law regarding age discrimination. Employers that have policies and procedures in place will be successful in the prevention of age discrimination.



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