As boomers age, it is important to be aware of age bias

Age discrimination is any adverse employment action taken against an employee that’s motivated by the person’s age. It’s far more prevalent than most employers realize. And it’s also illegal.

“There’s a lot of talk about gender or racial diversity, but little to no talk about age diversity,” says Ann-Marie Ahern, a Principal and head of the employment law practice at McCarthy, Lebit, Crystal & Liffman Co., LPA. “But just like sex and race, age is a protected category, so it’s important to be aware of age bias in the workplace.”

Smart Business spoke with Ahern about employer age discrimination — what forms it takes and the laws that protect against it.

How does age discrimination typically manifest in the workplace? 

Age discrimination in employment has a typical pathology. Typically, one or more of the following are present:

  •   Long term employee.
  •   Most often, around age 55 or older (even though the protected age category technically begins at 40).
  •   Previously rated as meeting or exceeding expectations.
  •   Valued for many years for knowledge and contributions.
  •   Sudden shift in perception of value or effectiveness of employee’s work.
  •   Often coinciding with a change in management or leadership.
  •   New emphasis on the part of the company on succession planning or hiring younger, fresh employees.
  •   Unreasonable scrutiny or wholly subjective criticism of employee’s work.
  •   Feelings of being marginalized or ostracized.
  •   Inquiries about retirement intentions.
  •   Older employee is singled out for discipline for conduct that goes unpunished in younger colleagues.
  •   Suspicious reorganization or reduction in force that appears to be driven by a desire to remove certain employees rather than to accomplish organizational needs.
  •   Successive departures of a number of older employees, either involuntarily or after pressure to leave.  
  •   Vague, disingenuous or previously unmentioned performance concerns are the stated basis for separation.  

What laws exist regarding age discrimination?

There are two primary sources of protection against age discrimination. At the federal level, there’s the Age Discrimination and Employment Act (ADEA), which provides protection from demotions or other adverse employment actions based on an employee’s age. Ohio has a corresponding law that provides an independent source of protection from age discrimination. 

Damages available to someone who has been terminated because of their age include lost pay, the value of lost benefits and any fringe benefits, as well as damages caused by emotional distress. 

How do severance agreements play into age discrimination? 

When a person losing a job is offered severance pay — severance is only required under the law if a company has an existing policy or plan that provides for it when an employee is terminated — its payment is typically contingent on the full release by the employee of any legal claims against the employer, including a claim of age bias.

In other words, in order to pursue a claim, an employee would be required to forgo severance pay. This is a difficult decision and an employee who agrees to severance should only do so after a careful evaluation of whether age bias has been a factor in the decision-making.

Under federal law, the employer must offer 21 days for the employee to consider the severance agreement, as well as seven days to revoke acceptance. That law also requires that the employee be offered something of value to which the employee is not otherwise entitled.

For instance, an employer can’t withhold a bonus that has already been earned or commissions unless the employee signs a release of claims. Additionally, the employer has to advise the employee to talk with a lawyer to evaluate the agreement and fully understand their rights. 

The baby boomer generation now spans from age 55 to 73. Whether you are an employee or an employer, being aware of age bias and the laws that prevent it in the workplace is important to protect yourself.

Insights Legal Affairs is brought to you by McCarthy, Lebit, Crystal & Liffman