As a society, we have now reached the point where many older workers are choosing not to retire at age 65, but instead, are opting to continue working. More concerning are the growing number of those who do not have the luxury of choice in retirement options, but rather must continue working indefinitely due to financial constraints.
With any eye on its aging work force, an employer might begin to wonder, is there an upper age limitation for employment? Or more poignantly, how old is too old?
The simple answer is that there is no universal age limit that once reached acts as a “free pass” for an employer to terminate the employment of a senior worker. Section 4(a) of the Age Discrimination in Employment Act (ADEA) defines what constitutes an unlawful practice by an employer, and specifically includes discharge of an individual because of that individual’s age.
For the average employer, failure to institute practices designed to comply with these laws could result in the imposition of some very stiff penalties.
But then, does this mean that an employer must continue to indefinitely employ a senior worker or risk a discrimination claim? Not necessarily. The law is reasonable, and it still allows businesses to continue making staffing decisions, even if some of those decisions result in the termination of an individual within the protected age class of 40+ years of age.
The ADEA has established 5 practices that are lawful under the Act. If an employer takes action based on any of the following defenses, it is not unlawful. These defenses are as follows:
2) the reasonable factors other than age defense;
3) the bona fide seniority system defense;
4) the good cause defense; and
5) the inconsistency with foreign law defense.
An attorney who practices in this area of the law can help a business to manage its risks and reduce the odds of having to defend against an age discrimination claim by helping the business to craft policies and procedures that are geared towards compliance with these laws. An employer can help itself to reduce the risk of having to defend against an age discrimination claim by following these guidelines. Moreover, because each claim of discrimination is fact specific, the more documentation an employer can produce to show that there was a lawful reason for the employment decision, the easier it will be to defend against a discrimination claim, if one is filed. Thus, proper documentation of all employment actions is imperative to good employment practices.