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Just as important, the EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s age. The protections apply to employees age 40 and older. At that point, the employee is considered in a “protected class,” the same as the people protected by the laws mentioned above. They shield employees from unfair employment decisions based upon personal characteristics unrelated to job performance. The laws on older workers only apply to employers who have more than 20 employees. It should be noted most other protection orders apply to employers with 15 or more workers.
What The Laws Cover
The laws relate to all types of employment decisions including hiring, firing, promotions, harassment, training, wages, and benefits. It’s also illegal to retaliate against a person because he or she complained about discrimination, filed a charge, or participated in an employment discrimination investigation or lawsuit.
What Is Age Discrimination?
Age discrimination involves treating an applicant or employee less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) forbids it against older employees. The law prohibits discrimination in job assignments, layoffs, or any other term or condition of employment. Discrimination can also include anything that might be considered harassment based on their age, including derogatory remarks about a person’s age. Harassment isn’t limited to the actual employer, but can also include the victim’s supervisor, a co-worker, or someone who is not even an employee, such as a client or passenger. Take note you can be sued by the employee for any type of harassment in the workplace relative to a person’s age. This doesn’t apply to innocent jokes made in jest, but rather repeated comments that cause a person to experience anguish or become uncomfortable in the workplace because of it.
As we age, our bodies change. We aren’t able to lift heavy items such as suitcases. Night vision becomes more difficult. Sleep patterns change, and older people tend to go to bed earlier and have less durability. For example, athletes retire when their skills diminish. Most jobs require some physical ability such as firefighters and police officers.
Let’s face it, being a chauffeur is a tough position some people are not able to handle. You certainly wouldn’t want an older fireman showing up to rescue you. Our clients would certainly not want to carry and load their own luggage. The ability to perform certain job assignments such as late night driving, early morning assignments, or long distance or airport trips with lots of luggage can become problematic with an older person who may not have the stamina they once did.
Using Work Arounds
Just because a chauffeur is aging doesn’t mean you need to put them out to pasture. Longtime veteran operator Douglas Schwartz likes to implement gradual transitions to accommodate his older chauffeurs. The transitions can include eliminating late night assignments or trips involving luggage, and even scheduling older chauffeurs for shorter shifts. Schwartz recognizes the value of older chauffeurs and the knowledge they have learned over the years. There is certainly great value in transitioning a seasoned chauffeur into dispatching. They bring with them the knowledge of airports, highways, and special procedures at certain venues. This information can be shared with younger chauffeurs from the dispatch seat. Another position you may consider is appointing the chauffeur as a trainer who works only daytime hours but shares his vast knowledge while training new employees. This isn’t considered discrimination; it’s accommodation. The law is on the employer’s side in such actions.
Reasonable Factor Other The Age (RFOA)
You can make employment decisions under RFOA rules. RFOA allows employers to claim a decision was made based upon other factors than age alone. This means if you decide you will not assign a particular chauffeur to airport trips because you know he has a bad back, the decision is based on the fact the employee has a bad back and cannot physically complete the job assignment. In this case, the fact is your business requires chauffeurs to handle luggage, and in doing so, the chauffeur would be exposed to a potential injury. So the decision is not based on the chauffeur’s age, but rather his limitations and your business practices and requirements.
United States Code 29 CFR 1625.7(d) states an employment practice that hurts an individual based on older age is discriminatory unless the practice is justified by a “reasonable factor other than age.” The individual challenging the allegedly unlawful employment practice bears the burden of isolating and identifying the specific practice responsible for the harm. The employer then has the burden of showing a reasonable factor other than age exists, which led to the decision.
It is not illegal to take any action where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. It’s also not illegal to terminate any employee, regardless of age, for violations of company policy. This means if your employee refuses to handle luggage, he can be fired based on the refusal to perform the job he was hired to do regardless of age.
What is Against The Law
Under ADEA regulations, you are not allowed to do the following:
Self-Recognition of Aging
Ideally your aging employee will come to you and let you know he or she is having a hard time lifting luggage or seeing the road clearly at night. This is the time to implement a new job. We all have to exercise a moral compass and show compassion and appreciation for those who have served well in the past, but are simply past their prime.
Embrace their knowledge and find a way to keep them in the workforce for as long as you can. You likely have invested in them over the years and it would be foolish to dismiss them just because of the limits they have developed through aging.
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