Age Harassment
As with other protected worker classifications, age can form the basis of a harassment claim. The Supreme Court has not yet ruled whether an employee can sue for age harassment under the Age Discrimination in Employment Act (ADEA). However, federal appellate and trial courts have found that a claim for age harassment does exist. What that means for employers is that, regardless of what state you do business in, you should act as though age harassment is a protected classification and admonish your employees not to engage in such behavior.
Age Harassment tools for Employment Law Letter subscribers
In addition, age harassment claims tend to arise in the context of an employer’s age-biased comments – or tolerance for coworker comments – offered as proof of age as the motivation for an adverse job action. Even if the employee is not alleging harassment, she can use the evidence of the harassment to strengthen her case that your company was biased on the basis of age.
There are some explicit defenses and exceptions in the ADEA defining when an employer may adversely affect the employment of a person age 40 or older. In general, employers may make employment decisions that adversely affect a person’s employment status and pay and benefits if its motivation is a reasonable fact other than age or falls into one of the narrowly defined exceptions.
As the first wave of baby boomers approaches retirement, HR professionals should be especially sensitive to apparent signs of age harassment, as issues such as retirement benefits are pushing to the forefront of the corporate discourse. Likewise, any company undergoing a reduction in force (RIF) would do well to review the ADEA and the Older Workers Benefit Protection Act (OWBPA).
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HR Tools for Age Harassment
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