My company laid off a lot of older workers. Is this age discrimination?

Question:

I was recently laid off from my job at a cable company. When the company announced the layoffs, the district manager told us that the company was looking to reduce headcount in several departments, including mine. Within those departments, the managers looked at performance evaluations, productivity, and experience in or ability to perform different positions in the company (they wanted to keep employees who could be reassigned to other jobs, if necessary). Because they were trying to save money, he said the company did not always count seniority in an employee's favor; it just depended on the position and the employee.

Here's what I noticed: Most of us who were laid off are at least 50 years old, and many of us have been with the company a long time. Is it legal to lay off mostly older workers, or is this age discrimination?

Answer:

The Age Discrimination in Employment Act (ADEA) and similar state laws prohibit employers from using an employee's or applicant's age as a basis for making employment decisions. The ADEA protects employees once they turn 40 years old. So, if your employer explicitly relied on age in deciding which employees to lay off, that would be discriminatory.

If your employer did not use age as an explicit criterion in making decisions, but nonetheless terminated a disproportionate number of older workers, this could potentially be discriminatory.

However, as long as your employer can show that its layoff decisions were based on a "reasonable factor other than age" (abbreviated as RFOA by lawyers), the actions are legal. For example, if your employer simply laid off the highest-paid employees in the departments targeted for staff reductions, or laid off all employees whose performance evaluations were lower than a specified threshold, the employer could use the RFOA defense.

In your situation, however, your employer relied on a number of criteria, some of which are capable of objective measurement and some of which are not. Layoff decisions like these are scrutinized more carefully because subjective criteria leave more room for the biases of the decision-makers to play a role.

In an RFOA case, it is up to the employee to show that the employer's job action had a disproportionate effect on older employees and to identify the specific factor or criterion that led to the older workers being laid off. Then, it's up to the employer to show that its decision was justified by an RFOA.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADEA, has said that courts should look at the following factors in deciding whether or not the employer's decision was based on an RFOA:

• the relationship between the factor the employer claims guided its decisions and the employer's stated business purpose
• whether the employer identified the factor accurately and applied it fairly and accurately in making decisions, including whether managers were given guidance on how to apply the factor while avoiding discrimination
• whether the employer limited managerial discretion to assess employees subjectively, especially if the factor could be subject to negative stereotypes of older workers
• whether the employer assessed the adverse impact the factor had on older employees, and
• the degree to which older workers were harmed by use of the factor, and any steps the employer took to mitigate that harm.

For example, in your situation, the company asked managers to determine whether employees had or could perform different jobs in the company. Whether employees actually had performed other jobs is an objective question. Whether employees could perform other jobs is a more subjective inquiry. And, it could be affected by negative stereotypes about older workers (for example, that they are inflexible or unable to learn new skills: the "can't teach an old dog new tricks" stereotype).

Consult an Employment Lawyer

If you are considering an age discrimination lawsuit, your first stop should be a lawyer's office. An experienced employment lawyer can assess the facts and the strength of your case and help you decide how to proceed.