Avoiding Ageism Claims, Part 3

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:

  • Don’t make age-based employment comments EVER! That means don’t ever say you would like to find or keep workers who are “young and energetic”, “fresh faces”, “go-getters”, or get rid of employees who are “deadwood”, “dinosaurs” or “old enough to have come over on the Mayflower” or any other euphemism that really means you are prejudiced against senior citizen workers. These stray comments will come back to haunt you when you have to make tough decisions about older employees.
  • Don’t mention retirement to any older worker, even if you think you are acting compassionately. Put a good retirement plan in place and then let the benefits administrator worry about when employees are going to retire. Your job as an owner or manager is to keep focused on each employee’s individual performance and make decisions based solely on that criterion.
  • If you are giving out a promotion, don’t exclude the older worker from consideration just because you believe he/she won’t be with the company much longer.
  • Put objective, realistic, measurable goals in place for each employee and then judge him/her solely on whether those goals are met. If they aren’t, then you are safe in requiring improvement, which may eventually lead to termination without discrimination.
  • Perform thorough written performance evaluations every six months on all of your employees. This will give you the ability to handle issues promptly and evidence of real performance problems with an older worker if you do get sued for age discrimination. Do not let any employee, including your senior workers, continue down the slippery slope to mediocrity.
  • Document everything about an employee’s performance. Keep a daily diary of attendence and tardiness issues, problems your employees have on projects, outstanding effort, misunderstandings, coaching that you do, and other interactions that you have with all of your employees. These notes can be formalized at written evaluation time. If a problem with an older employee has gotten serious enough to consider termination, there should be months worth of notes, coaching sessions, evaluations and written warnings that proceeded the termination.
  • Be very careful during a layoff for lack of work that you don’t conveniently select for job termination an older worker that you’ve been wanting to get rid of anyway. Your layoff criteria should be carefully determined beforehand to make sure it doesn’t discriminate on any basis, including age. Again, using measurable performance factors all along will make layoff selection easier and safer.
  • Consider a long conversation with an employment lawyer before you terminate the job of any worker over 40 years old to make sure that you are not exposing yourself to an age-discrimination claim. Yes, I know you believe most of us are expensive and may tell you something you don’t want to hear, but it could be money and time well-spent to prevent an expensive, productivity-draining, and ultimately difficult to win lawsuit.

Leave a Reply