As the number of older workers in the American workforce grows, so does the potential for age discrimination claims against employers. The increase in the number of workers over age 55 in the workforce is due to several factors, not the least of which is the hit employees took to their 401(k) retirement accounts during the recession. The aging of the Baby Boomers, increased life expectancy, the need to maintain health insurance, and a desire to stay active and earn extra income are other factors driving the increase.

Age discrimination in employment is prohibited under federal and the laws in most states. The federal Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from discriminating against job applicants and employees who are at least 40 years old. Most states have similar age discrimination laws that cover smaller employers (Colorado’s age discrimination law covers all employers, regardless of size) and some states prohibit age discrimination against younger employees (New York’s age discrimination law applies to individuals who are age 18 or older).

In addition, age discrimination claims may arise through a violation of the Older Workers Benefit Protection Act (OWBPA), a 1990 amendment to the ADEA, which prohibits age-based distinctions in the structure and administration of employee benefit plans unless justified on a payment-made or cost-incurred basis.

Often employers can run into trouble if they’re not mindful of the potential for age discrimination when selecting employees for layoff, particularly during a mass layoff or reduction in force. Under the OWBPA it’s clear that an employee may not waive or release rights under ADEA unless the waiver or release satisfies OWBPA’s specific requirements for a “knowing and voluntary” waiver. Failure to comply with the OWBPA’s requirements can render a waiver invalid as to age discrimination claims, subjecting an employer to liability.

How You Can Avoid Age Discrimination

A recent case in California also points to problems that result in age discrimination claims when an employer fails to consistently enforce its policies. The plaintiff in this case, who was 59 years old when she was fired, provided sufficient evidence that she was treated more harshly under the employer’s disciplinary policy than younger workers.

What can employers do to avoid age discrimination claims?

• Make sure policies are enforced consistently. Using strict enforcement against an older worker while taking a more relaxed approach with younger workers can raise questions of age discrimination. Employers should document decisions that appear to be inconsistent, explaining the legitimate, nondiscriminatory reasons that led to the decision.
• Provide training to employees on harassment prevention policies. Several federal appellate courts have ruled that harassment on the basis of age violates the ADEA. Nip inappropriate behavior in the bud by making sure employees know how to report offensive conduct. It’s important to investigate promptly, respond effectively, and follow-up to guard against recurrence or retaliation.
• Make sure the hiring process is free of questions or inquiries that are age related. For example, don’t ask for an applicant’s date of birth on a job application and don’t ask about graduation dates or similar information until after a conditional job offer has been extended and the information is needed for a background check.
• When drafting waivers, follow OWBPA requirements to the letter and document the steps taken to provide employees with all the information required. It’s a good idea to have an experienced employment attorney review severance agreements to make sure the requirements are met.

More resources on Age Discrimination

• Age Discrimination Topic Analysis
• Legal Pitfalls to Avoid when Implementing a Reduction in Force
• Preventing Age Discrimination in the Workplace
• 8 Age Discrimination Compliance Tips Every Supervisor Should Know

Joan S. Farrell, J.D.,is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens&rsqo; Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.