No Longer Forgotten

RESPONDING TO DECLINING revenue, a hauling company president calls in his sales manager, Ted, and tells him to reduce the sales staff by 20 percent. One of the firm's oldest salesmen, Charles, age 59, is among the employees designated for layoff. Although Charles regularly hits his numbers, he has fought a number of Ted's innovations, insisting he can meet the company's expectations by doing things the same way as he has always done them.

Charles is furious when learns that his position is going to be eliminated. He has been with the company for 20 years — twice as long as Ted has been around. Except for his resistance to Ted's sales tactics, his performance evaluations have been excellent. Twice in the past five years, his sales figures have led the team.

Shortly after Charles is terminated, Ted gets a memo from the legal department informing him that Charles has filed an age discrimination claim with the federal Equal Employment Opportunity Commission (EEOC), naming him and the company. The EEOC charge describes allegations that Ted allegedly failed to reprimand younger members of the sales staff who told jokes disparaging older people and that he asked Charles when he planned to retire.

This scenario, though fictitious, is comparable to what is happening in many workplaces throughout the country, and some damage awards are soaring into the millions of dollars. That is why waste hauling firms and every other employer need to do what they can to minimize the likelihood of a successful age-bias lawsuit. Under a ruling in March by the U.S. Supreme Court, a plaintiff does not have to prove that his or her former employer intentionally discriminated on the basis of age. [Smith v. City of Jackson, 125 S.Ct. 1536 (2005)] Mere “disparate impact” — akin to happenstance — may be enough bring a successful claim under the federal Age Discrimination in Employment Act.

Age-based litigation is on the rise thanks, in part, to healthy, productive workers who are staying on the job long after becoming eligible for retirement. Younger employees view these older workers as an obstacle to advancement. Moreover, jury awards in successful age discrimination lawsuits are significantly higher than in other types of discrimination cases. Between 1997 and 2004, older workers who were victims of age discrimination received damage awards 22 percent higher than victims of disability discrimination, which was the next highest category, according to “Employment Practice Liability: Jury Trends and Statistics,” a report by Horsham, Pa.-based Jury Verdict Research. [To view the report, visit www.juryverdictresearch.com.]

Companies that want to reduce the chances of paying a daunting jury award need to implement a training program to educate supervisors and managers, and to communicate a zero-tolerance for age discrimination. An effective program will address topics such as stereotypes about older workers' lower productivity and performance, as well as jokes and unflattering comments, at work and off-hours, about age.

Thanks, in part, to the Supreme Court ruling and significant jury verdicts, age bias is no longer a forgotten stepchild of discrimination law. Rather, it is now a noisy, demanding child.