Does age discrimination exist?
Absolutely! It is widespread. We all forget names and search for the right word from time to time. These memory lapses are commonly referred to as “senior moments,” a patently discriminatory term. Yet memory loss and other infirmities do afflict a significant percentage of the advanced age population.
For most employers, age discrimination is illegal under both the federal Age Discrimination in Employment Act (ADEA), 29 USC § 621, and the Indiana Civil Rights Act at Indiana Code § 22-9-2-1. Last year the EEOC received 10,857 charges of age discrimination.
Suit cannot be brought against the State and state officials under the ADEA because the state has not waived its Eleventh Amendment immunity from the ADEA. However, action can be brought against the State under the Indiana Civil Rights Act. Age discrimination suits can also be brought against State employers in federal court with a claim of violation of the Equal Protection Clause of the Fourteenth Amendment.
In a short quiz on age discrimination on the AARP’s website, the following query is asked:
If you see employers do this, it’s illegal:
a. Mention in job ads that they want to hire energetic young workers
b. Force workers to retire at a certain age
c. Fire older workers for performance issues
d. Both A and B
What is the Answer?
The correct answer is “D. Both A and B.” While discrimination is illegal, it does not mean that an older worker is exempt from the same standards the employer has for other employees. Age is not a suspect class under the Equal Protection Clause.
If you are having a problem with an older employee, your actions in response must have a rational basis unrelated to age. Your decisions must be based on work performance and the needs of the court, while the age of the employee is not considered and is irrelevant to your decisions.
The most recent case on this topic in the Seventh Circuit is an action brought against the Chief Probation Officer and the judges of Jackson County. See Tidd v. Markel et al, 2017 WL 951496. Brian Tidd was a probation officer for the Jackson County Probation Department. He was the longest serving probation officer in the department and was the oldest of the probation officers. However, the Chief Probation Officer, Norman Phillips, was significantly older than Tidd and the judges relied on Phillips’ recommendations.
Due to a falling probation caseload and a budgetary crisis in the county, the judges of Jackson County determined that one of the two probation officer positions in the Seymour office should be eliminated. In addition to being the oldest probation officer with the highest seniority, Tidd was also the highest paid. Eliminating Tidd’s position would have the most beneficial impact for the tight budget. While there was evidence that Phillips was unhappy with Tidd’s performance, Phillips told Tidd he was being downsized solely due to the courts’ budget needs.
Tidd alleged his firing was due to age discrimination and violated the Equal Protection Clause. Judge Richard Young granted summary judgment to the defendant employer. In reviewing the evidence, Judge Young considered the elements of a prima facie age discrimination case and found: 1) Tidd was a member of a protected (but not suspect) class; 2) he met his employer’s job expectations as there was no evidence of a disciplinary action against Tidd; and 3) he suffered an adverse employment action of involuntary termination. Judge Young then considered the fourth prong of a classic age discrimination case; that is, whether similarly situated employee outside of the protected class were treated more favorable. See Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 477 (7th Cir. 2010).
Judge Young rejected the defense contention that only the two probation officers in the Seymour office were proper comparators, as the Brownstown office had a more difficult caseload. Judge Young found that all the probation officers shared the same supervisor, were subject to the same standards, and had the same job duties. Since Tidd was the only one to lose his job, others were treated more favorably and Tidd established a prima facie age discrimination case.
Nevertheless, the defendants prevailed because Tidd could not prove that the budgetary concern was a pretext for age discrimination. Tidd argued that because the statutory probation officer schedule is set by years of service, it is age discrimination to make a downsizing determination based on pay level. Judge Young found otherwise and held that probation officers’ salaries are tied to experience, not age. While it is clear there is a correlation between years on a job and age, the factors are distinct enough that an employer can make a decision based on one without considering the other factor.
When a judge faces a difficult decision due to budgetary constraints or performance issues, the decision to be made cannot be based on age, in whole or in part. However, age is not a shield preventing the Court from making legitimate management decisions.
If you do have to let an older employee go, the one act you want to take early is to call your employment law counsel. Judge Markel and the Chief Probation Officer received advice prior to making a decision, and were prepared for litigation when it was filed. For all the judges of Indiana, give me a call and we can work together to get the Courts’ needs met in compliance with the laws.