When employers think diversity, most think in terms of sociological factors such as race or religion. But there’s another type of diversity that’s just as relevant in today’s workforce: age diversity. As Baby Boomers continue to work well past normal retirement age, the phenomenon of having older employees will become even more widespread.
Having the wisdom and experience of a graying workforce population comes with a price. Under the Age Discrimination Employment Act (ADEA), it is unlawful to discriminate against a person because of age with regards to any term, condition, or privilege of employment, including, but not limited to hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
This “aging law” was given a new lease on life with a recent Supreme Court decision. In the landmark case of Smith v. City of Jackson, Mississippi, No. 03-1160, the Court decided by a 5-to-3 vote that the ADEA authorizes disparate impact claims. The Doctrine of Disparate Impact means that even where an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using a seemingly neutral employment practice that has an unjustified adverse impact on members of a protected class.
Of course, employees 40 and older are a protected class. The real Pandora’s Box that was opened by this decision actually lies in the nature of the disparate impact suit itself because unlike disparate treatment claims, disparate impact claims don’t require proof of discriminatory intent. Their emphasis is on whether or not a company’s policies and practices adversely affect a protected group. The claimants must have substantive proof that even though there may have been no discriminatory intent on the employer’s part, the fact that the disparate impact exists makes that employer legally liable.
What should employers be doing as a result of this heightened employment practice liability? The first response should be to review benefits, compensation, and employment policies and practices to determine if there is any disparate impact on older workers.
You will also need to perform a statistical analysis to prove the inaccuracies in the data of any potential claimant. A current statistical analysis will also evaluate whether there is the potential for disparate impact on older workers’ from a particular workplace or procedure in the future.
As a reminder, Colorado Special Districts Property Liability Pool coverage includes Employment Practices Liability Coverage.
