Why Age Discrimination Lawsuits Will Explode in the Future – Part 2

We continue our supervisor core training on the age discrimination law (ADEA). In the first article we discovered a shocking new ruling from the United States Supreme Court. In this article we continue to posit why there will be an explosion of age discrimination laws suits and what your organization can do about it now.

The Ruling

The Supreme Court ruled in The Meacham v. Knolls Atomic Power case (June, 2008) that in order to establish its freedom from unlawful bias, you as the employer must not only produce evidence of, but also bear the burden of proving, a “reasonable factor other than age” for your employment policy or action which has a disparate impact on workers over the age of 40. Did you get it? It is pure and simple. The burden is on you as the employer to prove you did not discriminate, not the worker. So the worker holds the advantage going into the courtroom.

The Problem

Adding fuel to the fire is the fact that at the very time the High Court made this sobering new ruling, statistics reveal the American workforce is aging rapidly. According to the Bureau of Labor Statistics by the year 2012 nearly 70% of workers in the United States will be over the age of 40. Is this a Coincidence? You make the call. But your organization cannot afford to run afoul of this powerful law.

The Solution

Immediately get your supervisors and human resources (HR) personnel into training on this serious issue. Employment law attorneys (given this new ruling); will have an absolute field day in this area. But there are several strategies you can employ today to protect your entire organization.

1. Interviews: Make sure employees doing interviewing know what questions they can and cannot ask a prospective employee (especially concerning a person’s age). Don’t even allude to a person’s age. For example, making a statement like “you remind me of my father”, or “you remind me of my mother.” It is not hard to see how this can get the interviewer into unintentional trouble. Never forget the courts ruled unintentional discrimination is still discrimination. And discrimination is an action workers can bring before the court.

2. Hiring: Conduct an internal audit of your application process. Be honest with yourself. Take a close look and see if those applicants, over the age of 40, are systemically being weeded out of the hiring process.

3. Promotions: Conduct another internal audit of those workers being promoted. Take a hard look at the number over a one to three year period. Is there a pattern of workers over the age of 40 being passed over for promotions? Again, it may not be intentional, but nevertheless it can be lethal, and finally,

4. Firing/Layoffs: Before you have a layoff, make sure you study the age law and get to know it like the back of your hand. Workers over the age of 40 must be protected in a layoff and there are specific steps you must take in order to protect their rights. Get to know them. Additionally, conduct yet another audit; this time of those workers that have been fired over the last 1-3 years. Is there a pattern that can be perceived as having a negative impact on workers over 40? The point is to get to the audits, before the workers get to you.

Summary

With the aging of the American workforce, there will undoubtedly be an increase in age discrimination lawsuit. But your organization does not have to be a victim. This white paper uncovers specific steps you can take to be victorious in this area. Don’t wait another moment, study this law today.

© 2009 Cubie Davis King. All Right Reserved Internationally.

Dr. Cubie Davis King, PhD. is an adjunct professor at National University San Diego, CA in the School of Business, where he teaches Training and Development. His latest work is the Supervisor Core Training System 1.0 (SCTS 1.0). To get more information on this highly effective and engaging training system go directly to his website at website http://www.goldcrowninc.com

Dr. King is a Performance Technologist with a Ph.D in Training & Performance Improvement. His resume includes 9 years military service, and 12 years executive positions with Xerox & CitiGroup. For the past 13 years he has consulted with hundreds of companies on employment laws, and trained thousands of HR professionals in Live Seminars throughout the country. Dr. King has won top performance awards at every level of his storied career and is passionate about improving the performance of employees and business owners. Dr. King takes complicated yet sobering employment laws and makes them palatable and entertaining for everyone on your staff to understand.

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