As part of our ongoing series of posts intended to familiarize you with laws you must follow if you are running a business in New York, it is important to understand the way the law protects employees from age discrimination.
Age discrimination is when an employer makes employment or management decisions based on an employee's age and not on his or her job performance, skills or qualifications. There are multiple layers of protection from the federal, state and local levels in New York.
Age discrimination is not limited to hiring and firing. Claims for age discrimination can be based on age bias within the workplace, like passing over employees for promotion, failure to provide necessary training programs, distribution of "valuable" work to younger employees and other decisions within the operations of the business that are discriminatory. Age discrimination can take many forms - a resistance to new processes, and a lack of aptitude for new technology are typically "code" for such behavior.
At the federal level, the law protects workers age 40 or older from age discrimination. If you work or apply for work at a company with 20 or more employees, the Age Discrimination in Employment Act (ADEA) generally prohibit employers from basing decisions on hiring and firing on age. Companies should note that employees can bring claims under ADEA not only for glaringly obvious terminations and decisions based upon age, but also neutral factors that resulted in a disproportionately high impact on older workers.
At the state and local levels, both the State of New York and New York City have passed human rights laws that take ADEA a step further. In New York, if you work or apply for work at a company that employs only 4 or more employees, employers are prohibited from basing employment decisions on age unless age is truly necessary for the specific position.
So what is an employer to do? Especially in tough economic times, it is important to have an efficient and effective workforce. Employers considering workforce restructuring should weigh the risks of incurring employee claims and other potential liability from incorporating neutral means of determining workplace performance. Evaluation must include whether the selection of these individuals can be justified by business necessity, or in the case of older workers, by reasonable factors other than age.
So long as your business bases employment decisions upon objective measures and methods, you should stay relatively clear of the pitfalls of age discrimination.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.