Age Bias Lawsuits Can Begin At Forty. Here’s How To Avoid Them

The magic number in age discrimination suits under federal law is forty years old, that’s right, forty!  You might not think you have “older workers” but you probably do. So it’s time to start creating policies to make sure you are not discriminating.

While this is not a Workers’ Compensation Insurance issue, the challenge includes ensuring that you are handling promotions, transfers, wage increases and terminations with the least amount of risk to your organization, particularly in light of federal and many state laws that prohibit age discrimination.

First off, try to avoid stereotyping workers over 40 and refrain from making any remarks about a person’s age. These habits should be instilled in all of your supervisory and management personnel.

Courts typically categorize age discrimination claims based on how an employee intends to prove the claim. An employee pursuing a dis­crimination case may use as evidence direct statements made by managerial personnel indicating that age was a fac­tor in making an employment deci­sion. This could include:

• Comments by the manag­er that the employee is “too old for the job”, or similar remarks.
• Job ads looking for “young self-starters,” “new college graduates” or “de­livery boy.”
•  Statements or questions in documents in­cluded in the personnel records concerning age.

Employees may also try to prove age discrimination by circumstantial evidence. They can do this if:

• Similarly situated work­ers five to six years younger were treated more favorably;
• The reason articulated by the employer for the action is not supported by the underlying evidence;
• The employee’s age is noted on their personnel or other records that were reviewed by the decision maker; or 
• The employee’s personnel evaluations consistently rated them satisfactory or higher.