US employers brace for flood of age-related lawsuits

2007

America's rapidly-ageing workforce is going to lead to a dramatic increase in expensive age-related law suits, employers have been warned.

Lawyers have said they are already seeing age discrimination becoming a growing problem for employers as the baby boomer generation starts to approach the traditional age for retirement.

Even companies that have no intention to discriminate, or which are simply trying to improve their bottom line, may have policies and procedures that are evidence of age bias, said the lawyers at Epstein Becker Green Wickliff & Hall.

As the working population continued to age, it was likely employers would be on the receiving end of a surge in age bias lawsuits, the firm predicted.

In 2005, the U.S Equal Employment Opportunity Commission received more than 16,500 age discrimination charges but, with 20 per cent of the U.S workforce set to be aged over 55 by 2015, this number was only going to go up.

"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, attorney at Epstein Becker Green Wickliff and Hall.

"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," she added.

A study in 2005 by the Center for Retirement Research at Boston College had concluded that a younger worker was more than 40 per cent more likely to be called for an interview than a worker aged 50 or older, she added.

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

The issue of "disparate impact" and older workers arose most frequently with respect to job termination.

When a company decided that it must reduce its workforce, it often naturally sought to cut the highest-paid employees first or the long-term employee whose performance had declined.

Yet these workers were also frequently the older ones. "A company must have a legitimate business reason for all hiring and termination decisions which may exclude older workers," explained Marty Wickliff, attorney and managing partner of Epstein Becker Green Wickliff & Hall.

"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," she added.