Editor's note: This is part two of a two-part series on the ADEA. Part one is available here.
Yesterday, we talked about best practices for avoiding age discrimination in recruiting and placement, as well as tactics for stopping age-based harassment. Today, we’ll discuss tips for accommodations and upskilling; severance agreements; and avoiding litigation — all from a recent client seminar at law firm Dilworth Paxon.
Accommodations and upskilling
When employers are trained on Americans with Disabilities Act (ADA) compliance, they’re often cautioned against making assumptions about physical or mental impairments. Instead, when an employee’s performance is slipping, they’re advised to focus solely on the problem at hand, saying something like “I’ve noticed that you’re having trouble getting your work done; what can we do to help?”
HR and front-line managers should apply that same advice to older workers, Eric B. Meyer, employment law attorney and blogger, recommends. Unlike the ADA, the Age Discrimination in Employment Act (ADEA) imposes no duty to accommodate because of age, but there’s nothing wrong with asking someone what you can do to help, he said. Perhaps they’ll reveal a disability that does require accommodation, or maybe you’ll find out they just need extra training on your latest software purchase.
“The law firm of Google and Bing is not your friend; you're bound to screw that up."
Eric B. Meyer
Partner, Dilworth Paxson LLP
Meyer's co-presenter, Mary Tiernan of the U.S. Equal Employment Opportunity Commission (EEOC), agreed. Employers don’t have to be mind-readers, she said, but offering assistance can go a long way toward boosting morale and avoiding discrimination claims later.
Employers also can reduce their risk by handling separations that involve older workers with care. The Older Workers Benefit Protection Act amended the ADEA in the '90s, adding special requirements for events like layoffs. The ADEA now requires that employers recommend that covered workers consult an attorney and that any severance agreements give them time to back out, among other things.
The requirements — which also vary depending on the number of workers being separated — are pretty complicated, so Meyer said he recommends that employers have an attorney draft severance agreements when ADEA-protected employees are involved. “The law firm of Google and Bing is not your friend,” he said. "You're bound to screw that up."
Tiernan said the EEOC is on the lookout for agreements that chill workers’ ADEA rights. It’s important that employees can understand the agreement’s language, she said, and that the language won’t make them reluctant to respond to an EEOC investigation.
Finally, be sure to review (or have an attorney review) these agreements from time to time, even if they've been used successfully in the past. Interpretations and enforcement priorities, among other things, are “ever-changing,” Tiernan said.
If an employee has already filed an EEOC charge alleging an ADEA violation, there are still a few steps to take to reduce your potential liability.
First, consider using the EEOC’s mediation program, Meyer said. (Meyer himself is a volunteer EEOC mediator.) “It’s a really great opportunity,” he said. The commission's mediation program is free and, compared to litigation, fast. And by attempting mediation, you're under no obligation to settle, he said; if it doesn't work out, you've at least obtained some free discovery for your defense.
And successful mediation can be the difference between a $10,000 settlement and a $51.5 million jury award. Age discrimination claims are among the types of suits that resonate with juries, Meyer said. Uniformed Services Employment and Reemployment Rights Act claims fall into that category, too. “No one likes the idea of an employer discriminating against an employee for his or her military service," he explained. Juries get angry at the employers in these types of cases, and will sometimes award major monetary damages.
Why do age discrimination suits have that effect on juries? There’s often a sense that “this could have been me ... or that could have been my mom," Tiernan said. "I think that's powerful."