Boomers create age discrimination challenges for employers

DALLAS, Feb. 20 /PRNewswire/ -- While the Age Discrimination in Employment Act protects workers aged 40 and over from being discriminated against on the basis of age, "subtle" age discrimination is becoming a problem for employers according to two noted employment lawyers at Epstein Becker Green Wickliff & Hall, P.C.

Even companies not intending to discriminate, and who are only trying to improve their bottom line, may have policies and procedures that are evidence of age bias.

As the population continues to age, employment lawyers are seeing a dramatic increase in age bias lawsuits on the horizon. In 2005, the EEOC received more than 16,500 age discrimination charges, and the numbers will only go up: by 2015, twenty-percent of the workforce will be aged 55 or older. In addition, we continue to hear of massive layoffs at companies around the country.

"This is a real crisis for employers who haven't properly established procedures for making sure that bias does not creep into decisions and who haven't reviewed and revised their employment policies to ensure fair practices," said Gayla Crain, a leading employment law attorney at Epstein

Becker Green Wickliff and Hall in the Dallas office. "The situation is reaching a point of no return, with the EEOC already collecting upwards of seventy-eight million dollars on age bias lawsuits alone."

Is age bias real? A younger worker is over forty percent more likely to be called for an interview than a worker 50 or older, according to a 2005 study conducted by the Center for Retirement Research at Boston College, which sent out about 4,000 resumes to firms in Boston and St. Petersburg, Fla. and evaluated response rates from employers.

"A policy or practice that seems acceptable on its face may nevertheless discriminate against the older workers in a company's workforce," said Crain. "This phenomenon is known as 'disparate impact,' and it can be expensive."

The issue of "disparate impact" and older workers arises most frequently with respect to job termination. When a company decides that it must reduce its workforce, it may seek to cut the highest-paid employees first or the long term employee whose performance has declined. This oftenmeans those who have been there longest, who are paid more to reflect their greater experience, and who are frequently older.

"A company must have a legitimate business reason for all hiring and termination decisions which may exclude older workers," said Marty Wickliff, a veteran labor and employment trial attorney and managing partner of Epstein Becker Green Wickliff & Hall's, Houston office. "Above all, a company should develop and strictly enforce objective standards to be used in identifying and executing employment decisions, and seek counsel if there is any doubt as to the legality of a policy."