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The Age Discrimination Risk For Family Employers

The U.S. Equal Employment Opportunity Commission (EEOC) sued a beverage distributor in New York for terminating two sales employees on the same day in 2014. The EEOC alleged that the employer violated the Age Discrimination in Employment Act (ADEA).

During the trial, the EEOC produced evidence to show that the employer hired much younger sales employees to replace the terminated older workers because the organization's top sales manager "wanted a younger sales force."

The employer alleged that the two older sales employees had resigned voluntarily.

A jury in Brooklyn sided with the EEOC on behalf of the older sales employees and awarded them $458,000 in lost wages.

The jury also found that the employer violated the ADEA "willfully," meaning the two terminated workers could be entitled to liquidated damages on top of lost wages. "EEOC Wins Jury Verdict of $458,000 for Two Older Workers Fired by AZ Metro" jdsupra.com (Sep. 26, 2019).

Commentary and Checklist

The federal law, the Age Discrimination in Employment Act (ADEA), applies to employers with 20 or more employees; however, state anti-age discrimination statutes often apply to all employers, no matter the size, including family employers.

If you do decide to terminate an older staff member, make sure the termination is legally motivated, based on factors other than age, to avoid liability. Check with your legal counsel.

Family employers should also follow these guidelines to help prevent claims of age discrimination:
 

  • Know your state and other local laws governing age discrimination.
  • Develop an age discrimination policy that includes a complaint procedure.
  • Provide information on your age discrimination policy and procedures to all staff annually. Make sure they know how to report age discrimination.
  • Train all supervisors annually on what constitutes age discrimination, the risks associated with it, and how to prevent it.
  • State in your training that no age-related comments, either written or spoken, will be tolerated in the workplace, no matter the context or the intent.
  • Follow your policy and procedures and thoroughly investigate any complaints of age discrimination.
  • Carefully analyze your reasons for terminating or demoting a staff member age 40 or older beforehand to make sure they are legal and justified.
  • Document and support all adverse employment actions taken against an older individual, including failure to hire, termination, and failure to promote, with adequate paperwork showing there was a legitimate, non-discriminatory reason.
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