AGE DISCRIMINATION: The Naked Truth
Jamie Charter, M.S., CPDM
The Age Discrimination in Employment Act of 1967 (ADEA) affords protection for individuals who are 40 years or older from employment discrimination based on age.
This protective umbrella applies to both job applicants and employees.
It is against the law to discriminate against an individual because of their age regarding any term, condition or privilege of employment-including (but not limited to):
· Job assignments
The ADEA applies to employers with 20 or more employees, including:
· State and local governments
· Employment agencies
· Labor organizations
· Federal government
Regarding job notices and advertising for hiring, the ADEA deems it unlawful to include age preferences, limitations or specifications. There is a narrow exception to this when age can be shown to be a “bona fide occupational qualification” (BFOQ) and necessary to the essence of business.
While the ADEA does not specifically prohibit an employer from asking an applicant about the date of birth, it is essential, however, to ensure the inquiry is for lawful purposes, only and not discriminatory in nature against older workers.
WHAT QUESTIONS TO AVOID
v How old are you?
v Are you over 40?
v What year did you graduate high school?
WHAT TO ASK:
§ If you are hired, can you furnish proof that you meet the legal age requirements to work here?
§ A statement that hiring is subject to verification that an applicant meets legal age requirements is acceptable.
And now……….PRESENTING: AN AGE DISCRIMINATION CASE STUDY:
JOHNSON AND HIGGINS TO PAY $28 MILLION IN SETTLEMENT OF AGE DISCRIMINATION LAWSUIT… (the Largest EEOC Monetary Settlement for Age Discrimination in New York State)
In a consent judgment obtained by the U.S. Equal Employment Opportunity Commission (EEOC), Johnson and Higgins, Inc. agreed to pay $28 million to conclude a lawsuit that alleged that it violated the Age Discrimination in Employment Act (ADEA) through its policy of forcing employees who were members of its board of directors to retire at age 62.
The settlement resolved a lawsuit EEOC filed in 1993 in U.S. Southern District Court based upon allegations that the insurance brokerage and employee benefits firm, which employs 7,000 people nationwide, maintained a mandatory retirement policy. The firm was ordered to end the policy and was subsequently acquired by Marsh & McLennan Companies, Inc.
The EEOC had contended that Johnson and Higgins' policy requiring its employees classified as Directors to retire at the end of the year in which age 62 is attained, or at the end of the year in which age 60 is attained and 15 years of service on the Board is completed, violated the ADEA.
"This case demonstrates that companies cannot arbitrarily impose age-based requirements for employees even if they place them on their Board, and that the EEOC will vigorously fight against corporate policy which violates the ADEA," said James Lee, Regional Attorney for EEOC's New York District Office.
The naked truth:
AVOID DISCRMINATION!Ensure that your company does not engage in age discrimination by knowing clearly what is appropriate and what is inappropriate in the hiring process.
Author, consultant and educator Jamie Charter has been providing employment and litigation consulting services for 22 years through Charter and Company employer resource consultants. Jamie is Certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE). She is on the faculty of HRRESOURCE.com and WORKCOMPSCHOOL. [email protected]; www.employerresourceconsultants.com.
Jamie Charter, consultant, trainer and author, has been providing employment and litigation consulting services for 23 years through Charter and Company employment resource consultants in Soquel, California. Areas of specialization include development and implementation of disability management programs, case management, EEOC/FEHA/ADA consultation, return-to-work facilitation, CalPers job description services, job analyses, conducting training seminars for employer groups on sexual harassment prevention and discrimination and litigation /expert witness services in Forensics.