Avoiding Ageism Claims, Part 1

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: Mandatory retirement is prohibited by the federal and state age discrimination laws. You cannot involuntarily retire an employee unless age is a bona fide occupational requirement (limited pretty much to police and pilots). You shouldn’t even mention to an older employee “Isn’t it time for you to be thinking about retirement?”

You can, however, make it very attractive for an employee to retire on a timely basis by offering a 401K or other retirement plan. Think of it as insurance: you can contribute now to a retirement plan that will allow older employees to contemplate with pleasure their retirement, or you can be cheap now and in 10-20 years, you can still be paying those employees their full salaries while they continue to work for you regardless of their capabilities or their interest in the job. On top of that, you could face extraordinarily costly attorneys’ fees to defend you in the age discrimination suit that will result when you finally reach your breaking point and fire your older workers.

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