The Age Discrimination in Employment Act and employer obligations

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).

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):

being provided with the opportunity to exploit their talent being given the chance to prove their potential skills in an important task being regarded by the peers learning new skills be in the favorable working environment lending helping hands to others satisfying the insatiable desires in their profession (Dobrich et al., 2002).

Employers need to review their policies on continuous basis to ensure age-discrimination free statements. In addition to policies, review of procedures and practices is also mandatory. It can result in discouraging stereotyping against the old folk and mitigating the unlikely impact over older employees. Employers should also address the concerns of aged workers and try to meet their expectations through forming focus groups in all age brackets after 40 years. It can help organization to market the jobs in a better way based on the feedback gathered from elderly group about their perception and expectation about the organization (Dobrich et al., 2002).

Addressing Expectations at the time of hiring

The organization should offer health related facilities, retirement benefits and competitive salary.

The organization should get the elderly recruitment process assessed by experienced advisory committee.

The selection process should be based on age only if it is genuinely needed, otherwise the applicant should be tested on the basis of job role and required qualification and experience. The interview should be trained enough to gather age info without any bias and seek it in legal purview to collect background information of the applicant (Dobrich et al., 2002).

Meeting employees expectation while serving the organization

Training opportunities should be offered unbiased of age. All volunteers should be included in the training program. It is not always the case that elderly lack learning skills or interest in acquiring further knowledge.

Working schedules and conditions should be planned according to the will of applicants and employees. Part time jobs are quite lucrative to the elderly group. Furthermore, flexible hours are also an attraction for them. There should be certain positions based on flexible hours and part time.

It goes without saying that increasing age leads to multiple issues that cause their jobs to be redesigned or regard them as disabled. The issues can be raised out of perception; they can be actual or assumed on the basis of previous records.

Organizations can win loyalty of their employees by motivating them through promotions, rewards and attributing value to their contribution in the organization. Irrespective of age group, employees tend to get motivated by these factors. Organizations should not assume the elder group to pursue early retirements. There is no definite relationship between the two. It is an illegal practice that an elderly employee is deprived of promotion just because of his age (Dobrich et al., 2002).

Conclusion

Organizations should not inculcate the stereotypes based on the age of employees and should not undermine their capabilities. Age is not the determinant of capability of a person at workplace. Age discrimination is illegal, one can find a thin line of permissible discrimination but the supporting argument is not strong. Even is the discrimination is lawful, it harms the interest of elderly group. Intentional and obvious age discrimination should be prevented and bias about ranks should be abolished (Dobrich et al., 2002).