Ask The Lawyer

By Debra Roth

Tips to avoid age discrimination complaints

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As the federal workforce ages, managers must ensure their older employees are provided their rights. The Age Discrimination in Employment Act (ADEA) protects employees 40 and over from discrimination with respect to any term or condition of employment — including hiring, firing, promotion, compensation, benefits, job assignments and training. In essence, it prohibits all personnel decisions that are made on the basis of an improper consideration of the individual’s age.

To make a claim of age discrimination, an employee must be 40 years or older, have received an adverse personnel action, and be able to demonstrate a causal connection between his or her age and the action.

Your management mantra when it comes to avoiding age discrimination complaints, or any equal employment opportunity complaint for that matter, should be: “Communication is key.” In my experience, most discrimination complaints arise from the failure to effectively communicate a management decision.

Make personnel decisions based on legitimate agency needs and ensure the message is communicated to affected employees clearly. Leave the opportunity for questions to dispel rumors or misconceptions.

Several other guidelines will minimize your vulnerability to a complaint of age discrimination:

*In most cases, do not establish an age limit for a job. The only exception, according to the Equal Employment Opportunity Commission (EEOC), is when age is deemed a “bona fide occupational qualification.” For example, certain law enforcement positions may have a maximum age for applicants, and the age should be specified in the job notice.

*Do not request an applicant’s age or date of birth. While the law does not specifically prohibit you from asking, EEOC has strict guidelines for this type of inquiry. If you choose to include a question of this nature, you can expect your hiring process to be scrutinized by EEO officials to ensure the inquiry was made for a lawful reason.

*Be mindful of your day-to-day comments that are age-related. EEOC has found that inquiries into an employee’s retirement plans could be deemed a basis for discrimination. Age-based comments are direct evidence of discrimination and, in the event of a complaint, can go against an agency’s explanation of a personnel action or decision.

For example, in the 2001 case Harrison v. Department of Justice, EEOC found that the agency discriminated against an employee based on his age when it transferred him to another facility. The employee provided evidence that his supervisor had often referred to him as an “old man” and once called him a “dinosaur.” What could have been passing comments showed a causal connection between the complainant’s age and the agency’s action, leaving the agency liable.

*Choose your language wisely when making personnel announcements. Perhaps when announcing your decision to hire a new employee you say that the agency “needs new life.” Perhaps you only mean this in a general way — that you are pleased that your agency’s recruitment of younger workers is meeting success. But when an older employee is terminated down the road, an innocent, general comment like this could be recalled and perceived as a specific indication that you were clearing the way for a younger employee.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.