On March 30, the United States Supreme Court broadened the scope of protections for older workers.
The Court held that the Age Discrimination in Employment Act (ADEA) protects older workers from discrimination arising from policies that appear neutral - that is, they don't specifically target older workers.
In Smith v. City of Jackson, police officers and dispachers claimed that a pay plan discriminated against older workers by giving junior officers with less than 5 years' experience higher percentages of pay raises in a plan designed to bring their pay up to be competitive with other areas.
While this practice didn't specifically target older workers, they claimed that it negatively impacted them overall, because they tended to have more years experience, and thus, received lower percentages of pay raises than the younger workers. Although the older workers lost the case, the Court did recognize that the type of claim they brought, called disparate impact, is viable under the ADEA.
Employers can still defend against these types of claims by producing evidence that they based their actions on reasonable factors other than age discrimination ("RFOA"). In this case, the Court found that the employer took seniority and rank into account, and thus relied on a reasonable factor other than age, so the officers actually lost their lawsuit because of this RFOA exception.
This exception recognizes that there are factors which often closely correlate with age, but are not the same as age itself (for example, years of experience or seniority). Unlike with race or national origin, some courts say that age may have "relevance to an individual’s capacity to engage in certain types of employment."
Nevertheless, employers must be careful not to violate the law in mass layoff or "reduction-in-force" situations, where the group of those laid off contains more older workers, and the group of those retained contains more younger workers, especially where the layoffs seem to target higher-salaried employees or those soon eligible for retirement benefits.
Workers who think that a policy is negatively affecting them based on their age, if they are 40 or older, may consider seeking legal counsel to determine whether they have a disparate impact claim.
Employers should closely scrutinize their policies and practices (especially pay and lay off decisions) to make sure that they are not negatively impacting their 40+ employees without a reasonable basis.
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