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Age-based discrimination laws.

Question 1: My business has fewer than 20 employees. Do I need to worry about age-based discrimination laws?

Answer: The federal Age Discrimination in Employment Act (ADEA) applies only to employers that have "twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." However, most states have their own laws governing discrimination, so you need to be familiar with the laws of the state(s) in which you operate.

Question 2: What should I do to steer clear of age-based discrimination lawsuit risks?

Answer:

A. Understand the federal and state laws under which you operate.

B. Avoid making implied promises of job security in recruiting materials, personnel policy manuals, and handbooks.

C. Make sure your employees who are responsible for making offers of employment do not make statements that can be construed as guaranteeing employment.

D. Avoid statements during disciplinary action, hiring procedures, or other discussions such as "I don't think you can do the job like you used to", "We are going to get some new/fresh faces in here", and "We would like to hire someone who is going to be here a long time."

E. Ensure that employees over 40 years old receive the same discipline as those under 40 for like or similar conduct.

F Verify that pay rates for equal jobs are comparable with the various age groups within the company.

G. Closely monitor all policies and procedures as they relate to discipline, promotions, pay increases and interviews to make sure they are administered in a fair and nondiscriminatory manner.

Question 3: Is there some standard that the court uses to gauge whether age-based discrimination has occurred?

Answer: The Supreme Court of the United States set forth the framework for establishing a case of intentional age discrimination. The plaintiff, who claims that he/she was not hired because of their age, must demonstrate:

1. The plaintiff is a member of a protected age group.

2. The plaintiff was qualified for the position in question.

3. Despite being qualified, the plaintiff's employment was adversely affected, and

4. Someone younger, with similar or lesser qualifications, replaced him/her.

If the plaintiff successfully establishes elements 1 through 4, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff will then have the ultimate burden to establish that the employer's reasons are "pretext" for discrimination (i.e., not worthy of belief).

Question 4: If a suit is filed against my business, what should I do first?

Answer: Contact your attorney immediately.

Question 5: If I am found to have violated the ADEA (Age Discrimination in Employment Act), what penalties can I expect?

Answer: The penalties may be any one or more of the following:

* Require managers to sign a statement regarding the ADEA and undergo EEOC training.

* Provide neutral and fair employment references to a prevailing plaintiff.

* Payment to employee of compensation lost because of age discrimination ("back pay").

* Reinstatement.

* Liquidated damages of double the back pay award.

* Payment of plaintiff's attorney's fees, in full or in part.

Costs of defending an ADEA case vary dramatically, depending on the underlying facts, number of individuals involved in the case, whether the EEOC is a party to the action, whether the case is before a judge or jury, whether the case goes through appeal, and the attorney representing the plaintiff. The costs of these cases can range between $45,000 (no jury) and $150,000 (or higher).

Michael J. Lissau is a labor and employment law specialist at Hall, Estill, Hardwick, Gable, Golden & Nelson, PC. He may be reached at mlissau@hallestill.com.
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Title Annotation:ASK THE EXPERT
Author:Lissau, Michael J.
Publication:The Business Owner
Geographic Code:1USA
Date:Mar 1, 2012
Words:615
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