When it comes to avoiding claims of age discrimination, consider the optics

For example, consider a lawsuit that the U.S. Equal Employment Opportunity Commission filed a few weeks ago.

I’ll quote a bit from the press release and be back with you in a second:

[A] dental practice headquartered in Harrisburg, Pa., violated federal law when it fired a group of dental hygienists because of their age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

According to the suit, in August 2015, a new owner purchased the dental practice. From September 2015 through November 2015, [the dental practice] fired eight out of nine dental hygienists older than 40 at its Camp Hill, Pa. location. [The dental practice] did not give the dental hygienists, each of whom had years of experience and was qualified for the position, any prior notice or reason for the termination. From August 2015 through February 2018, [the dental practice] them replaced them with 14 employees, 13 of whom were under age 40.

The Age Discrimination in Employment Act makes it unlawful to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” (my emphasis).

In other words, (1) the employer generally must intend to discriminate; and (2) age must be the motivating factor. The EEOC believes that the dental practice ticked both the first and second boxes. But, I have no idea if that’s what really happened because these are just allegations in a press release and lawsuit, and we don’t know the dental practice’s side.

However, it doesn’t look good for the dental practice.

How can your business avoid the same bad look?

  1. While perception may not be reality, it can still be enough to trigger claims of discrimination. Therefore, consider whether one protected class is disproportionately affected by a reduction in force or a series of layoffs. If so, rethink your approach.
  2. Communication and respect are paramount. Scroll back up to the press release. The EEOC claims that the dental practice didn’t provide any notice or reason for the terminations of employment. Not good, right? While notice isn’t always possible, the respectful thing to do is to explain to someone the reason why they are losing their job. (As long as that reason isn’t ‘discrimination’. Keep that to yourself.) The employee may not like what he or she hears. However, the employee may be less inclined to include that [insert protected class] motivated the employment decision.
  3. Document your decision. You better believe that if the EEOC comes knockin’, they’ll want to see how you papered your employment decision. Good documentation can make or break (or avoid) a lawsuit.

 

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“Doing What’s Right – Not Just What’s Legal”