Monthly Archives: September 2008

Employers Vulnerable under New ADA Amendments

Discrimination

President Bush signed amendments to the Americans with Disabilities Act (“ADA”) into law on September 25, 2008, that will make it easier for disabled employees to win lawsuits against their employers.The law goes into effect January 1, 2009.

The amendments specifically prohibit courts from considering “mitigating measures” in determining whether an employee can sue under the ADA. Since 1999, upon direction of the United States Supreme Court, lower courts have looked at aids like insulin for diabetics or prosthetics for amputees to determine whether an employee is actually disabled and therefore can sue under the ADA. If medication or equipment eliminated the effects of the disability, then the employee couldn’t take advantage of the ADA to sue his/her employer.

For example, nearsighted pilots who were barred from flying commercially tried to sue United Airlines for disability discrimination, but the Supreme Court said that corrective lenses meant that they were not disabled. They just didn’t meet the physical criteria required by United Airlines. Granted, this type of circular reasoning made for some strange legal opinions. But the end result was that many employers had less to fear about the exorbitant costs of defending an ADA suit.

Those relatively carefree days are over for businesses. With the new ADA amendments, Congress has specifically directed the courts to interpret the ADA broadly (i.e., in the employee’s favor). Even if an employee is not actually disabled, but only perceived as impaired, Congress and the present Administration mandated that the employee could take advantage of the ADA to sue his/her employer.

What does this mean from a practical standpoint? Continue reading Employers Vulnerable under New ADA Amendments →

Avoiding Ageism Claims, Part 3

Discrimination, Documentation, Termination,

As I have pointed out in the earlier posts in this series on age discrimination, the demographics of the available workforce are soon going to require you as an employer to recruit and retain older workers. With historically low unemployment rates in the Texas Panhandle, that time may already be upon us.

Many business owners and managers that I work with still seem to believe that at age 65, an employee becomes more of a liability than an asset. I recognize that group health insurance premium rates play a big part in that perception, but there is also an assumption that an older employee’s cognitive and technical skills diminish at that point. That may be true for a few employees, but many senior citizens do not exhibit those losses and remain solid performers. They often demonstrate much more loyalty, commitment, experience and emotional maturity than their younger coworkers.

However, there will come a time when you have had enough of an older worker who is not performing up to your expectations. Then you have to consider terminating that worker’s employment. How do you do this without guaranteeing an age discrimination lawsuit? VERY CAREFULLY! Here are a few tips on firing your oldest workers without your actions backfiring upon you: Continue reading Avoiding Ageism Claims, Part 3 →

Avoiding Ageism Claims, Part 2

Discrimination,

In the previous blog in this series on age discrimination, I pointed out the necessity of employers recruiting and retaining older workers in the future. By 2020, workers over 55 will make up almost one-quarter of the workforce. If you like to hire only young, fresh, cool (and cheap) workers, in the next decade you will find that you don’t have enough people to fill all the jobs in your workplace.

But as you are employing older workers, you have to be careful that you don’t get tripped up by claims of age discrimination. I always tell the corporate and civic groups to whom I am speaking that age discrimination cases scare me more than any other kind of case.

Why? Because the fear of growing old and being considered useless is universal. Every jury member can empathize with the older plaintiff who claims that he was retired against his will to make way for some young “whippersnapper.” Also age discrimination cases are expensive to fight and expensive to lose. According to Jury Verdict Research, age discrimination cases yield the highest dollar amount verdicts of all employment cases.

So every employer should be aware of ways in which you can avoid ageism claims, both now during an economic downturn (when the number or discrimination lawsuits goes up) and as the older worker population grows. First, consider your hiring practices and resist the following mistakes: Continue reading Avoiding Ageism Claims, Part 2 →

Avoiding Ageism Claims, Part 1

Discrimination,

Ten years from now, one quarter of the American workforce will be over 55. Because retiring Baby Boomers will leave a critical shortage of qualified workers, no longer will employers have the luxury of employing “new blood” and “fresh faces” (i.e. young, cheap labor) as employees. The visage of the American workforce will be a little grayer and a little more wrinkled.

Employers will simply have to find a way to satisfy and keep older workers in order to have enough employees to keep American businesses strong. And yet, many employers still mistakenly believe that people should automatically retire at 65 or that older workers will naturally lose their faculties and need to be “put out to pasture” like aging racehorses. Take it from a Baby Boomer: whether realistic or not, we believe that we still have plenty of turns around the track left in us.

One aspect of the graying of the workforce will inevitably be that Boomers, never shy about asserting their rights, are going to be suing their employers who try to force them out of the workforce. Two-thirds of the Boomer respondents in a 2002 AARP survey believed that age discrimination exists, that older workers are always the first to go when there are workforce cuts, and that age 49, when many workers peak in their productivity, is also the average age when workers begin to face age discrimination in their jobs.

So as a business owner or manager, you have to start deciding now how you are going to attract and retain valuable older workers and how you are going to avoid age discrimination claims when you have to get rid of those employees who are no longer able to perform well. I’ll give you some guidance in this series on ageism claims, so please check back at least twice per week for more information on this topic.

Here’s the first tip: Continue reading Avoiding Ageism Claims, Part 1 →