Age Discrimination?

Question

Mark, the personnel manager for Shelby Manufacturing Company, was meeting with Shawn, the production manager. Shawn began the conversation by stating, “Mark, one of our first-line supervisors has applied for the new departmental job. This guy would be great and is the best qualified. But, I don’t want to put a 62-year-old person in the position. I’d rather fill the vacancy with someone who will be with us for a while. Also, our competition is so great that we must absolutely have a person in this job who has the energy to work long hours.”

"Shawn,” Mark said, “I guess you don’t realize that our company has always had a policy against age discrimination. Not only that, it’s illegal. I suggest that if age is your only hang-up, the worker should be promoted.”

Do you agree with Mark's assessment of the situation? Why or why not?

Answer 1

Mark's assessment is a bit limited as he should be training Shawn more fully. But it is correct.

First, it is a perfectly valid concern to want someone in a job to last for a long while, with exceptions for the good of the company (for instance, he's good enough to promote further!). However, society has weighed in, with the full force of law, and says that it is undesirable for all of us if a company acts upon this concern to the point of not hiring/promoting women (who might be already or become pregnant or leave to follow a change in a husband's job, etc.), older workers (who might wish to retire soon or could have disabling health issues just around the corner, etc.), poor people (they might steal, being poor... or might sell drugs at work, etc.). I expect that credit checks will be forbidden soon. After all, if we permit bankruptcy with no concern for those to whom money was owed (it's not always, or even normally, all owed to massive corporations who priced credit to all of us in the expectation that some would be lost), then we need to provide a means for those folk to actually find a way forward after release from debt or they'd be stuck in the same rut forever.

In any case, the point is that society requires we not make what might be perfectly warranted assumptions (or even know to be facts: that 62yo supervisor might have told Shawn that he plans to retire at 65) about various protected characteristics/groups. This protection does not extend to short-term concerns so if he were 64 years, 8 months old and had already put in his papers to retire on his 65th birthday, then they could reject his application out-of-hand. But this is clearly not the case. So he must be considered on his merits and the company must be prepared to defend its choice to him, if he asks, or to a jury, if he sues.

Secondly, since the company has a policy against age discrimination, he must be considered regardless of society's concerns. A point often missed about published, or even if not published, widely known and acknowledged, policies is that they form an actual, binding contract with the employees. So having said policy, the company is bound by contract to consider him on his merits. And be prepared to defend its choice to him, if he asks, or to a jury, if he sues.

Thirdly, and perhaps most important of all, is the last thing Shawn had to say about the 62yo: "Also, our competition is so great that we must absolutely have a person in this job who has the energy to work long hours.” If he has factual, proveable knowledge that this particular person is incapable of performing according to the job's requirements, stamina included, AND he documents holding every candidate who otherwise is acceptable to the same standard AND it would seem plausible to a jury of non-experts that his judgment on the subject was accurate and that his need to consider such is appropriate to the job, then he may hold the 62yo applicant to this concern.

But there are many pitfalls in doing so. One is that a jury might disagree that he really evaluated the 62yo's stamina, rather that he simply assumed '62 years old, can't possibly do it' (I might point out his statement to Mark would clearly show that's exactly how he evaluated him). Another is that a jury could decide the concern isn't even valid and should never have been considered anyway. A jury could decide he did indeed evaluate the 62yo and perhaps fairly, but that he did not truly evaluate another applicant, one that perhaps is much younger. I would also point out that this is not the only individual who might sue because of this. 100 others might learn of this and realize they also were passed by for similar reasons and sue about their own passing-over. Or several passings-over if they believe they were passed by multiple times. Women might come forward, and others recognized as groups, saying they were passed over for equivalent reasons germane to their own particulars. Indeed, thousands of job applicants who were never even hired might join in with their own tales of assumed woe. Don't disregard this. Of the approximately 6,000 cases Wal*Mart has pending against it at any particular moment, more than half deal with employment issues. The company could face a great deal of litigation from just this one promotion.

And that's without bringing in all the federal and states' agencies handling EEO complaints (with their triple damages if the company wishes to not pay and fight the issue in court after they make their findings) or without considering that the 62yo might be so offended that he quits and pursues a claim for unemployment and lawsuit for lost wages saying he was "constructively discharged." (That's usually the preserve of those demoted, but if he convinces a review board and/or a jury he simply could not keep basic human pride, and stay at the job, then he'll collect.) If the company is in California, he could even expect to win a workers' compensation claim based upon the mental distress the situation caused him.

Finally, Mark needs to know that, while the popular use of the word "discrimination" is to imply an unfair, racist or otherwise having used a broad stereotype, if the company appears in court to defend Shawn having done this (if, for instance, Mark had not intervened/been in the loop to prevent such things), it will be defending its policy based on the proper definition of "discrimination" which is much broader: it simply means to choose based upon, to discriminate between choices with no perjorative sense. It includes any such choosing that has the popular meaning, but much more besides. So that policy would greatly ease the 62yo's burden in the lawsuit.

In a company that has a personnel manager and /or department that always is involved in hiring, firing, promotion and discipline, it is common for the question's approach to be taken wherein the Marks of the company proceed somewhat or nearly to decision before the department or manager comes into play. This can be very detrimental and waste the expertise in the department or manager because the Marks can and do make many mistakes in the portions they do before involving the personnel manager. These mistakes can be the causes of actions against the company or, at the very least, a solid core of dissaffection in the workforce.

It is vastly better for the department or manager to be involved from the absolute start, or for good, on-going training to be conducted and still being involved from nearly the start of whatever process. Sometimes I think companies do not do so in part because it makes their supervisors more marketable, more able to seek other employment themselves. But whatever the reason, it is penny-wise and dollar foolish. And those dollars usually have a trail of zeroes like a kite's tail.

(One last note: the stamina in an older worker question can be compared to not wanting to hire Jews and, believing the old stereotype about Jews having big noses, never hiring anyone with a big nose. Oh gosh, you don't have a policy about Jews, oh my no! You just don't want people with big noses because, they, um, let's see, oh yeah, they would sneeze more stuff when they sneeze and people coming to the restaurant would know that, and, um, would avoid your restaurant. Yeah, that's it. Get a 59yo on your jury when the 62yo sues and that's precisely how at least one juror is going to see it. One must remember to never use "stand-in" reasons when making personnel decisions: ALWAYS completely understand your underlying concerns and motivations and actually act upon them in all cases. Not only will you better avoid legal liabilities, but your decisions will be better ones and your company will benefit from that. So might your salary/promotion opportunities... and your own market value. You could very well end up feeling like a much better person too and that has a high value to most people.)

Answer 2

I agree with Mark's assessment because he stated company policy and explained how Shawn could comply with it.
Shawn is wrong on 3 counts. First, by not promoting he's violating policy and law. Second, he assumes the 62-year old will retire as soon as possible. Third, he says the qualified guy doesn't have the energy, but doesn't give any evidence.
The only way Shawn would be right would be if the guy had already demonstrated a lack of energy or inability to work long hours. Because those failings can also be found in some young people.

Answer 3

Sixty two isn't old we still have employees born in 1935-1936 and our average employee is mid 50s and we are great workers.
When you hire a young person they sometimes change jobs again without a few years, so at 62 he might just stay as long as a 20 year old and be capable of working long hours for many years.
Age discrimination is illegal and against company policy but is also stupid.

Answer 4

Yes!!!

A 70 year old came up with the I-Pod commercials. Age has nothing to do with performance!

Answer 5

Yes, age discrimination is illegal.

Answer 6

this is in fact age discrimination. but unfortunately this happens all the time even in entry level positions where age has no bearing

Answer 7

doesnt matter how old some1 is as long as they are capable of doing the job, that is all that matters.