Dennis BeaverJune 11, 2021 • By Dennis Beaver

As the concept of age discrimination has become better known, complaints from older American workers — people over 40— have gradually increased. Since COVID-19, agencies that deal with age discrimination have seen a significant ramping up of employee complaints.

Recently I discussed this timely issue with Lou Reyes who runs a YouTube channel for people over 50, appropriately called “Over 50tv.” While not a lawyer, his experience in this area came from 14 years as a publisher of business-to-business magazines and “having managed over 100 people.”

I asked him, “How do business owners wind up spending thousands of dollars in attorney fees defending age discrimination claims and likely paying a stiff judgment? Here is Reyes’ by-the-numbers ways of getting yourself sued:

– Suffer from the “Suddenly Stupid Syndrome”. After years of giving an employee great reviews, single out and reprimand an older employee for things that everyone does and have done all along.

Consequences: The employee will feel they are being picked on for reasons that are not legitimate. A smart employee will keep a detailed record of what has been happening in addition to notes about feedback from co-workers who have seen the behavior and offer to be a witness. All of this helps to form the basis of an age discrimination suit.

– Cut job responsibility. Limit older employees’ authority. Change their title – shift the employee into an area that is not taking advantage of their experience and skills.

Consequences: You will humiliate the employee who will feel emboldened to take legal action against you.

– Isolate your older employees from meetings, businesses lunches, and strategy planning sessions they had been included in before. Transfer the employee to an area, “outside of where the action is taking place.” Do not call back to work older employees as often or as quickly as the younger ones.

Consequences: Employees will feel that they are not valued and end up leaving the organization or contacting HR as a first step to legal action.

– Cut older employees’ hours and reduce pay. Use the pandemic as an excuse. Think that the rank and file won’t notice this happening.

Consequences: This hurts moral for the entire organization. Co-workers have compassion for each other and will think, “Is this going to happen to me? Should I remain here or leave?” A pattern of this can form the basis of an age discrimination suit.

– Deny promotions or opportunities for advancement to your older, experienced employees but give them to young workers.

Consequences: This becomes an engraved invitation for the affected employee to file an age discrimination suit. You can’t find much better evidence, and it is easy to prove. Additionally, morale and productivity is badly impacted throughout the organization. Employees see this and wonder, “Why should I strive, work hard to further my career here when it is obviously at a dead end?”

– When the economy slows, or if the pandemic returns, lay off or terminate a much larger percentage of older employees than younger.

Consequences: You are opening yourself up to being sued. It is apparent that the older workers are bearing the burden of layoffs, you are asking them to band together and file suit.

– Make disparaging remarks based on an employee’s age, such as “Hey you old man,” or assume that an older worker can’t grasp technology. Deny the training you give to younger employees to older ones. Think, “Why should I invest in an older employee who will not be around as long as a younger one?”

Consequences: You risk losing a loyal, experienced, responsible team member who has always shown up for work on time and acted in the best interest of your company. You will seed the thoughts of discontent among all employees who will view this behavior as unfair.

Reyes offers these recommendation for employees who can identify with the issues raised in today’s story.

1 – Speak to your immediate manager unless they are the problem.

2 – Put your concerns in writing.

3 – Schedule an appointment with HR or a designated person in upper management.

4 – Meet with that person, let them know what your concerns are, show them the issues in writing and ask for their opinion on how to solve the problem.

5 – If nothing improves, then you have to make a decision; either pursue the matter through legal channels, or leave the company.

Reyes concluded our interview with these words of caution:

“Don’t react in anger. Do not spread rumors! Don’t destroy your career, instead, try in good faith to resolve the matter before it becomes larger.”

I ran Reyes’ recommendations by Southern California employment attorney Jay Rosenlieb, who commented, “All of Reyes’ observations make perfect sense. Employers are well advised to take his advice to heart.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.