Age Discrimination in the Workplace
age discrimination in workplace

Photo Credit: The Telegraph

Actual Comments of Why Employees Leave

“She is keeping all the young people and getting rid of anyone with a lot of seniority. I believe all of this is coming from above—throughout the hospital.”

The Solution:
For sake of discussion, let’s assume the ExitRight interview quote above is from a female registered nurse.

At companies with 20 or more employees, firing or laying off workers who are 40 and over simply because they are older is considered age discrimination in the workplace, and is illegal under The Age Discrimination in Employment Act (ADEA).

According to data from U.S. Equal Employment Opportunity Commission, American businesses pay out something in the neighborhood of $90 million annually in ADEA complaint settlements. And no doubt spend a lot more than that defending themselves against ADEA-related allegations of age discrimination at work. If the RN in question and/or her other former co-workers suspect they were victims of age discrimination, they would have 180 days (6 months) to file a charge.

To help the hospital address this concern, the HR manager in this case may want to make certain that these firings were nondiscriminatory and legal under any labor agreements that might be in place. Some quick research into terminations over the last few quarters under this particular manager might make sense. Do the findings support or refute the notion that older workers have been dismissed in a way that suggests a pattern?

If RNs 40+ years of age have been regularly terminated on that particular floor—or throughout the hospital, as this RN suggests—then it makes sense to understand from the middle managers why. There needs to be “a reasonable factor other than age” at play here. Say, “performance” or a business decision to reduce payroll.

Without a labor contract in place, termination of older workers for cost-cutting could be a “reasonable factor other than age,” as required by the ADEA, and therefore could be a legitimate defense against an age discrimination filing.
Now, of course, if a company—or in this case the hospital—wanted to reduce payroll while under a collective bargaining agreement, then it might not be in compliance with that agreement, which might obligate the hospital to incentivize early retirement for its older RNs who, to participate, would sign a document waiving their ADEA rights.

But that hardly seems like the scenario being described by the exiting employee above.
According to employee records, were the terminations performance related? Budget related? What reason(s) were these older employees given for their firings?

Managers properly explaining to employees the “cause” for their dismissal can be disarming and help to reduce the likelihood of age discrimination complaints. Was proper framing and an honest reason given?

Based on the ExitRight interview quote, perhaps not.

Now, separate from compliance issues, if this particular manager says that the series of terminations of older RNs was due to performance, then that begs the questions:

• Were there really documented performance issues?
• If performance was truly the issue, then why are veteran RNs not seen as performing adequately?
• Is there a problem with their job descriptions that is setting them up for failure?
• Is there a failure with the hiring process in the department?
• Do the older RNs have a morale issue that is hurting their performance?

Interestingly, workers under the age of 40 are afforded no legal protection against age discrimination. But there’s probably a reason why: Older workers as a group have more job security concerns due to their greater expense—larger salaries, more accrued benefits and the onset of health issues that can, in aggregate, represent as financial risks for employers who cover them with health plans. Older workers—who are also more likely to be caregivers and providers for dependents—are patently more vulnerable than younger workers, so the rule exists for a reason.

Thankfully, quotes like this gleaned from exit interviews can help keep large organizations aware of what’s happening with terminations across the span of the entire company—terminations that can be flagged and investigated as potential non-compliance situations. And where middle management can be reminded or re-trained about what is and what might not be legal and regarded as good termination policy by the company’s legal department.

(This blog post is brought to you by HSD Metrics, an exit interview company that helps companies reduce employee turnover by providing automated reference checking, exit interviews, and by measuring employee retention. The comments from exiting employees that are featured in this blog are collected from actual exit interviews conducted using ExitRight®, HSD Metrics’ exit interviewing service. If you are interested in learning more, contact us today. Because we place the privacy of our clients at the top of our priority list; the names of all involved parties are kept completely confidential.)