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Age discrimination fast-growing category of employment cases

The number of age discrimination cases filed with the Equal Employment Opportunity Commission (EEOC) is up 24% this year, making ageism the fastest-growing category of discrimination cases.

An EEOC study shows that about two- thirds of workers aged 45 to 76 believe that age discrimination is a problem in the workforce. Age was listed as more important in how workers are treated than gender, race, sexual orientation or religion.

“It has seemed that charges with the allegations of age discrimination in employment have been increasing in relationship to other kinds of discrimination charges,” said Frederick King, enforcement supervisor for the EEOC in Jackson. “Most of the issue is with forced retirement, benefits and layoffs. My personal feeling is that with the state of the economy, many of these larger companies have a necessary need to downsize. And in downsizing some of them take the option of presenting to some of the more senior employees buyouts and that type of thing. Unfortunately, not all companies know how to go about offering buyouts to employees.”

King said some employees are pressured to quickly accept a buyout without having the opportunity to have it reviewed by an attorney. Employees have a right to have an attorney review the proposal. And with so much at stake, it is important for employees to understand the details of the offer.

Rather than go through a long investigation and decision process, the EEOC prefers to attempt negotiations andor settlements in age discrimination cases.

“The advantage of mediation is that quite often it will calm the feelings of the both sides and it will circumvent the employer having to provide expenses for presenting their defense,” King said. “And it can bring about a much quicker resolution. Charging parties don’t have to retain an attorney on their own behalf. And it also saves the taxpayers money for the money and time it takes to go the full investigation.”

On average it takes six months to two years across the country for an age discrimination charge to go through a full investigation and resolution. In Mississippi the average processing time is usually six months or less.

Will age discrimination increase in the future as the percentages of older workers increases? King says that probably depends a lot on the economy. If companies have to tighten belts and reduce their workforce, more older workers may be given the pink slip. If the economy recovers making worker shortages common, it is more likely that businesses will retain older workers.

“An employer, in my opinion, is wise to retain the older workers who are familiar with the process and know how to do the job although it may cost them a little more money to keep them on payroll,” King said. “But in the long run because of their efficiency, it would probably benefit them. The younger employees are still ambitious and may not commit themselves to the company as loyally as older workers. And when you look at most of your airline crashes, it is your older pilots with more experience who have been able to bring the plane down safely when there are problems. So that might be good evidence that your older, experienced worker needs to be retained.”

Walter Howell, AARP associate state director for advocacy and communication in Mississippi, said because so many older workers have seen drastic losses in their 401(k) plans and other investments, those workers will now have to stay at work longer. “Whenever they stay in the workforce for a longer period of time, then they become more vulnerable to age discrimination,” Howell said.

It can be difficult to prove age discrimination, especially in hiring. Howell says that is because hiring is a very subjective process. Age discrimination is easier to prove for current employees. For example, if a company has a reduction in force and most of those laid off are older workers, that provides strong evidence of age discrimination.

“Across the country the tendency has been to have a disproportionate number of older workers get caught up in a reduction in force,” Howell said.

According to the AARP, the following are indications of age discrimination unlawful under the Age Discrimination in Employment Act:

• You didn’t get hired because the employer wanted a younger-looking person to do the job.

• You were passed over for training courses and then got a negative job evaluation because you weren’t “flexible” in taking on new assignments.

• You got fired or laid off because your boss wanted to keep younger workers, who are paid less.

• You received undeserved negative performance evaluations and then your employer used your “record” of poor performance to justify a demotion or termination.

• You got turned down for a promotion to a mid-management job, which went to someone younger who was hired from the outside because the company says it “needs new blood.”

AARP recommends that employees who feel they have been discriminated against on the job should talk to their employer to see if the matter can be solved. If that is unsuccessful, employees have the right to file a charge with the EEOC. Charges must be filed with 180 days of the alleged discriminatory act. After the 60th day of filing a charge with the EEOC, employees have the right to file suit in court.

Most charges filed with the EEOC are investigated, and either negotiated or dismissed. Very few proceed to a court case. In deciding whether or not to file a lawsuit, consider that litigation takes a great deal of commitment, time and money.

Contact MBJ contributing writer Becky Gillette at mullein@datasync.com or (228) 872-3457.

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