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Age discrimination is a hot topic these days, with several cases pending for decision by the U.S. Supreme Court. The Age Discrimination in Employment Act (ADEA) protects employees age 40 and older from discrimination in employment based on age. Age discrimination can include discrimination in hiring, promotion, pay, benefits, and discharge. The Act also protects against retaliation for asserting rights under the Act. In the current recessionary climate, there is an uptick of companies being accused of using illegal age factors in trying to reduce costs.

Our experience is that older workers given the pink slip after years of dedicated service are not fired for being poor performers. To the contrary, our age discrimination cases involve top performers and leaders in their companies. Unfortunately, the common thread in many corporate downsizings often is age.

The ADEA provides remedies not just for individuals affected by ageist employment practices, but also for groups or classes of similarly situated persons. It contains specific procedures which allow employees to sue in a collective action to challenge age discriminatory practices. When implementing reductions in force, employers seeking valid releases of age claims must comply with the Older Worker Benefit Protection Act (OWBPA), which requires employers to provide older workers with specific protection during lay-offs. Failure to comply can mean that invalidly obtained releases are not enforceable and will not bar age claims, even where severance benefits have been paid as consideration for the release. In 2002, our firm joined forces with AARP Foundation Litigation to co-counsel in a age discrimination case. The case involved a large group of older employees challenging a reduction-in-force which they allege was effected by means of age based discrimination. In many age cases stemming from reductions in force, one of the issues is “forced rankings,” whereby the employer required supervisors to rank employees in anticipation of lay-offs. A pre-determined number of employees were designed to be found not to meet expectations. In many instances, the same workers labeled as “poor performers” to justify the reduction-in-force, had previously been evaluated as meeting or exceeding expectations. One way to ensure that such “forced ranking” situations result in age discrimination is for the employer to assign younger employers to perform the rankings. If you would like additional information about age discrimination laws, please contact us.

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