Business Law in Relation to Age Discrimination

Business Law in Relation to Age Discrimination

According to the Bureau of Labor Statistics, almost 50% of the America's working population is 40 years or older. This means that Age Discrimination in Employment Act now covers almost of the American workforce employed in private sector (Neumark, 2008).

Keeping in view the current situation, in which the workforce is not graying or growing at a faster pace, employers are in search for qualified workers. They need to retain such staff that could be beneficial in coming years (Neumark, 2008).

Age discrimination simply means to put arbitrary age limits during hiring, discharging, promoting, compensating, providing benefits and good working condition, irrespective of the performance of an individual. Conversely, this policy also acts as a mean to hinder potential employees or older employees to find or retain jobs (Neumark, 2008).

The link between business, government and society

Age discrimination in employment is prohibited by state and federal laws. According to ADEA (Age Discrimination in Employment Act) federal Age Discrimination in Employment Act safeguards job applicants and employees of age 40 years and above from any possible age discrimination.

ADEA was passed in 1967 and ensures that job applicants and employees of age 40 years and above are not discriminated on the basis of age by any federal government, employment agencies, or employers. Such job applicants and employees must have worked with an employer (including local and state government) having minimum 20 employees. Any labor organization or union having at least 25 members is also warned for any age discrimination.

Basic Safeguard: ADEA makes the subsequent customs unlawful.

Employers having 20 or more employees are not allowed:

• Discriminating employees aged 40 years and above on the basis of age during hiring, compensating, providing benefits, laying terms and conditions, firing, etc. (Dobrich et al., 2002);

• Getting revenge from an individual who has asked and complained the government for age discrimination (Dobrich et al., 2002); or • Implementing policies that are age-neutral so that older workers are not affected in a negative way, similarly, not finding any such justification to implement policies against old workers (Dobrich et al., 2002).

If employers are working under ADEA, then employment agencies are not allowed to refrain from or deny referring employees aged 40 years and above (Dobrich et al., 2002).

It is the responsibility of federal government to ensure that no federal employees or job applicant is affected by age discrimination (Dobrich et al., 2002).

Labor organizations, like unions, having greater than or equal to 25 members are not allowed:

• Discriminating member of age 40 years and above (Dobrich et al., 2002);

• Influencing employer to conduct age discrimination against an individual (Dobrich et al., 2002); or • Getting revenge from an individual who has asked and complained the government for age discrimination (Dobrich et al., 2002); or ADEA also covers labor organizations and employment agencies as employers if they have more than 20 employees (Dobrich et al., 2002).

Employee Remedies: An employee or job applicant can reach EEOC (Equal Employment Opportunity Commission) in case if he or she experiences age discrimination. Once filing a charge against government agency, union, employment agency, or employer, the federal government agency undertakes investigation and decides the existence age discrimination. If yes, court action or mediation is sought (Dobrich et al., 2002).

A charge can be filed as soon as employee realizes that he or she is a victim of age discrimination. Else, he or she may also file it within 180 days of alleged discriminatory action. If there exists separate age discrimination law by the employee's state, then he or she may have 300 days for filing a charge with EEOC) (Dobrich et al., 2002).

State Age Discrimination Laws

Every State is allowed to have its own laws on age discrimination. Although they are in close resemblance with ADEA, they still vary in terms of age limit and number of employees may be less then 20 too. Similarly, some States also provide protection to employees below 40 years. According to 2001 Supreme Court decision, some laws do not provide a chance to state employees to seek lost wages or any other monetary damage caused by ADEA (Dobrich et al., 2002).

The timeline for filing a charge differs for federal EEOC and state fair employment agency. It is also important to file a separate charge of discrimination with state agency working under state fair employment law and it will take less duration. Moreover, various procedural requirements are present in states that are inconsistent with filing a complaint with federal court or a charge with EEOC (Dobrich et al., 2002).

Section 2: Ethical sources of behavior

People experiencing age discrimination are not the only affectees. The total cost of bargained resolutions related to federal age discrimination complaints accumulated to $69 million in 2004. Nevertheless, employers should ponder over the fact that experience, skills, and talent of matured employees must not be overlooked. American firms need such talented people to remain competitive throughout the world (Sargeant, 2009).

Age stereotyping is widespread in our society, in which people are attributed on the basis of their age. This is also a problem in organizations. This is present in various management layers, for instance, when some employee is in the age of 60, he or she is normally suggested by the supervisor about retirement. Sometimes, this implicitly depicts that younger employees are more energetic and competent (Sargeant, 2009).

ADEA is violated by those employers who base their decisions on such stereotyping when hiring, assigning jobs, firing, or providing benefits to their employees (Sargeant, 2009).

It's been more than 40 years since the ADEA became a law, yet the elderly, looking for jobs, consider unfairness in the hiring process when it comes to age limits. From 1994 to 2004, around 15,000 to as much as 20,000 cases were reported to the Federal government against age discrimination. According to a survey in 2004, majority of the workers above the age of 45 - still filly capable of working at their best - feel that age discrimination was still the biggest hurdle in enhancing their professional careers (Sargeant, 2009).

The ever-changing dynamics of our society point us towards the fact that challenges that the elderly workforce have had to bear will be dwarfed against what is yet to come. These dynamics include the aging of workforce, an expected dearth in quality labour, and the aspiration of baby boomers to work a little longer than what their forefathers did. These issues have also affected the new legal regulation regarding age inequality because companies are now supposed to consider job assignments, and employee remuneration and perks before hiring anyone (Sargeant, 2009).

The Aging Workforce

The age of an average labour in 1982 was 34.6, whereas, today it is above 40. More and more labour in the U.S. will now have people who are protected by the ADEA. It is expected that the highest increase in workplaces would be for the people aged between 55 and 64 because of healthier lives, hence making them more than capable of working longer than the previous generation (Sargeant, 2006).

The Coming Labour Shortage

The children born after the baby boomers' generation are less than the generations born between 1946 and 1964. Its is forecasted by the U.S. Department of Labour that from 2010 onwards, the growth rate on labour will drop down to 0.4% in contrast to 1.6% per year amid 1950 and 2000. While there are disagreements over the exact proportion of shortage, most experts have a consensus that there will be a time when the amount of available jobs will surpass the number of workers available. If the firms wish to maintain their productivity, they need to retain employees who are loyal with their employer and experienced in that field (Sargeant, 2006).

Baby Boomers desire to work longer

Almost 80% baby boomers wish and chose to work after retiring. The main reason for this is that being a worker means that health and money is taken care off. Some workers also think of choosing a new field or perhaps starting something of their own. It seems like in reality more people wish to do this because as they come near to retiring they understand that they are not financially very strong and therefore have to continue working (Sargeant, 2006).

Boomers desire flexible working provisions

When an accomplished worker is hired he brings with himself his skills, outlook and honesty to the job. In order to make sure that the workers stay, the employers must be flexible and understanding. The workers, like all workers, require more power and freedom. They prefer a work schedule that gives them time to relax or carry out other personal activities. All training and other resources must be extended to them and they must have the respect of their co-workers and employers. In the past 20 or 30 years, the boomer women made a path for the mothers who worked, similarly today previous boomers are making a path for things that will be in the best interest of all workers (Sargeant, 2006).

Novel Legal Issues have been materializing

The environment of a working place is changing due to the advances in technology and adaptation of different economic and social ways. All of these have an effect on the law that foresees no one is treated unfairly due to age. The cost of health insurance is ever rising and this has led the employers to hold back on covering the health cost of their workers. This is raising questions on the link of ADEA and the policies regarding health care (Sargeant, 2006).

Today, employers that are experiencing diversified workplace along with the legal trends are trying to move towards the future with the help of certain policies, procedures and laws. All these measures are planned keeping in view new employees as they will be involved in providing quality work with their skills and experiences (Sargeant, 2006).

Businesses, in order to compete and adapt new technology, processes and skills need to alter its workforce as well as implementing new policies. Reinforcing new policies is not the only job of the management; but appraisal of the worker's performance is also necessary. However, if new policies exploit the older workers in any way, this would go against the federal law. It is therefore required that employers must keep a proper record of the performances and assess it regularly (Sargeant, 2006).

What results in employees getting charged by the employer? The employer is immediately notified by EEOC if he is charged by his employee. The EECO carries various options for continuing the employees' process. Charge may lead to dismissal if case seems weak and without strong evidences. Moreover, if the investigations do not have any value for the case; the employee is straight away dismissed. On the contrary, strong evidences may give rise to further investigation which may include interviews, documentations etc. (Sargeant, 2006).

In some cases, the team may wishes to resolve the case through settlements and negotiations. Mediator would be welcomed by the EECO, who would be an informal member, assisting in negotiation. However, in this case the mediator is not in a position to implement any decision or handle the charge (Pierson, 2004).

Litigation is the method of conflict resolution though it is quite expensive and time consuming activity. The conflict can be resolved through alternate disputes resolution methods commonly referred to conciliation and mediation. They call for volunteer discussion and interference in the conflict to resolve it. They do not incur much cost and are time-saving approaches. If they both fail in solving the issue, the lawsuit is the last option. EEOC precedes with filings a case confronting the employer. The termination of investigation is also at discretion of EEOC, if it feels that the investigation will not produce any desired result of law violation (Pierson, 2004).

As mentioned earlier, litigation is a lengthy and expensive form of conflict resolution; these hassles are destined for all the disputants. An employee is entitled to jury access at least after 60 days of filing the charge. It is quite possible that the employer, who has been accused of discrimination against the disputant employee, loses the cases and has to pay heavy damages to the winning party. The damages can take any form, back pay, front pay and the attorney's fee paid incurred by the employee. It is quite likely that the court verdict states reinstatement of the employee in the organization. The court may also ask the defeating employer to pay all the benefits, the winner employee could have enjoyed if there was no discrimination against him (Pierson, 2004).

Section 3: Recommendation to plan corrective action while facing issue.

The employers can keep them at safer side if all their human resource related decisions are based on age-neutral criteria. The hiring, task allocation, firing, compensations and benefits should not take into consideration the respective age bracket of the employee. The decision should base on the standard set of requirements posted against any job role (Encel and Studencki, 2004).

It leads to abolishing the fake assumption that employees approaching retirements shirk work and do not pay heed to training programs (Encel and Studencki, 2004).

In order to stay away from age discrimination at work place, the originations should take serious initiatives at policy level. There should be clear cut, well defined statement that discrimination is intolerable. All the sections in an organization which are involved in human resource activities should be abreast of this anti-discrimination policy. They may be supervisors, managers, support staff or other members of human resource department. The organization should ensure the information flow down the line to all of them (Encel and Studencki, 2004).

Policies, when put in black and while are more approachable in practical terms. In a survey, mature workers expressed their expectations at work place in terms of (Dobrich et al., 2002):