Polk Law Blog

One thing I’ve been seeing a lot more of lately are age discrimination cases, both plaintiff and defense (obviously, you can’t have one without the other). So are a bunch of other people. Age discrimination is particularly tricky for the employer, even more so than gender or racial discrimination, for several reasons:

1. Older, more highly paid employees are natural targets for layoffs, which makes it tougher to determine if a layoff is non-discriminatory or not.

2. Although an employee can waive age discrimination claims upon severance, in order for the waiver to be valid it has to be signed in accordanced with a very technical procedure. Businesses who do their own severance agreements often mess it up. 

3. Older employees who are laid off have a difficult time finding work at the same pay level and are therefore more likely to sue.

4. Companies today are, by and large, doing a much better job about not discriminating against women and minorities than in the past, meaning that lawsuits over these issue are less common than they once were.

For Employers:

• Document, document document. There is no substitute for proper documentation of all performance issues, evaluations, reprimands, and procedures.
• Make sure you speak to an attorney about your severance agreement, if you use one. If it is defective in any way, it may not protect you from a lawsuit.
• In layoffs, make sure the criteria for layoff is developed early and fairly.
• Train your supervisors to be sensitive to age issues. If a supervisor has made age-related comments about an employee, whether within that persons hearing or not, whether jokingly or not, it can and will come back to haunt you.

For employees:

• Do not sign a severance agreement without taking time to review it and consult with an attorney. You have that right, take advantage of it!
• Make a note of all verbal reprimands and keep copies of any written reprimends or documentation of adverse employment decisions. 
• Make notes when disparaging or suspicious comments are made about your age, race, gender, handicap, or other protected status. 
• If you feel you have been discriminated against, speak to an attorney as soon as possible. It is very important not to delay.