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Monday Pop Quiz: Age Claims Never Get Old

September 25, 2017

By Michael G. McClory

The Bullard Edge finds this a bit ironic.  The Age Discrimination in Employment Act (ADEA), which provides employment protection to persons 40 years of age or older, is 50 years old.  In other words, the ADEA is itself old enough to be age-protected.
Acknowledging the ADEA’s milestone, EEOC reports that it has been an effective law.  “Fifty years ago, arbitrary age limits for hiring and firing were common.  Older workers represented less than five percent of new hires at the time. . . With the enactment of the ADEA in 1967, Congress sought to promote the employment of older workers based on ability.  The ADEA opened opportunities for older workers by banning most age limits and requiring equal treatment of workers without regard to age.”
Nevertheless, ageism in the workplace is not dead.  EEOC states that “outdated assumptions about age and work persist as stereotypes and barriers to older worker employment” and “older workers still confront age discrimination in getting or keeping jobs.”  In fact, EEOC asserts that over the past decade “older workers filed more than 20,000 charges each year alleging age discrimination.”
In honor of the ADEA’s anniversary, and to get you ready for the week, we present a Monday pop quiz below.  The quiz questions are drawn from recent ADEA lawsuits filed by EEOC.  Close your notebooks.  The quiz begins now.
Question #1 – The New Hire:
Horace is the CEO of Reptilian Sandals, a fashionable shoe design start-up that has taken the Mid-Town footwear industry by storm over the past two years.  This run of success has been fueled in no small part by the innovative “six-toed beach t-strap” that dominated the market during the summer of 2017. 
While the workforce has grown to nearly 70 employees, Horace still makes the final call on all hires.  Today he is reviewing application materials for the two finalists for a new design assistant position ~ Reggie and Sher.  According to the HR Manager’s notes, Reggie has 5 years of design experience and 15 years of sales experience; he is a 1983 graduate of Mid-Town High School (the year is circled).  Sher has 12 years of design experience with three different employers and is also a MTHS graduate (2001 is circled).  Horace believes that Sher is probably the more qualified candidate, but is concerned about the inferences that could be drawn from rejecting age-protected Reggie.
Who should Horace select and why?
Question #2 – Too Old To Accommodate?:
Bob’s 3-D Billboards has been the subject of a number of complaints over the past year.  B3D developed amazingly realistic three-dimensional billboard technology a few years ago and they have popped up all over Mid-Town.  Imagine a giant Pacific Octopus lunging with menacing arms outstretched at your car as you drive by.  Or try to visualize a pack of sabertooth tigers springing at you while you are stopped at a red light.  (Aren’t they extinct?)  This is the kind of experience that B3D creates with its billboards.
Several automobile accidents later, along with numerous complaints to zoning boards, B3D is hurting.  A few contracts have been cancelled and new business has slowed to a halt.  Although it has not yet reduced its workforce with layoffs, B3D has trimmed its rolls from 95 to 85 by not replacing employees who have retired or taken jobs elsewhere.  It is possible more drastic measures will be needed, though.
In her role as HR Manager, Karren has met with numerous nervous employees during this time of decline.  Yesterday she met with Ron who wants to return to work after having been on medical leave for the past six months while undergoing treatment for a non-work-related back condition.  The good news for Ron is that his treating doctor has cleared him to return to work; however, he is going to need accommodation in order to perform the essential lifting and carrying functions of his job.  These are low-weight items, but the carrying and lifting is essential. 
Ron provided Karren with a brochure describing the very specialized mechanical device that would be needed to help him with lifting and carrying.  While the cost of the item in former times might not have seemed too large, B3D’s current financial straits made it seem like a big number.  Additionally, Karren knows that Ron is likely to retire in the next couple of years.  He is over 62 and in the past has talked about calling it a career at age 65.  As a result, Karren is of the opinion that it is not worth it for B3D to provide the mechanical device to Ron as an accommodation.  He would not use it for a long time and it is not something that another employee might be likely to need.
Should B3D provide this accommodation to Ron?  Why or why not?
Intermezzo ~ The Menacing Arms of the Giant Pacific Octopus:
The Monterey Bay Aquarium says the following about the giant Pacific octopus.  “They catch their prey by surprise, using camouflage, jet propulsion and the sure grip that comes with having eight arms.”  It is easy to understand why the image of one of these creatures leaping out of a billboard towards traffic might cause an accident or two.
Answer to Question #1 (The New Hire):
If Horace believes that Sher is the objectively more qualified candidate then it makes sense to offer the position to her.  Neither the ADEA nor Oregon law creates any age-based preference in employment.
Horace seems to have been guided by the HR Manager’s decision to circle the high school graduation years for each of the candidates.  Quick math probably led to the deduction that Reggie, class of 1983, is approximately 52 and that Sher, class of 2001, is around 34.  Horace’s concern seems to be that a rejected Reggie might have a viable age-discrimination claim.
The odds are against any such claim being successful, though.  According to EEOC, the federal ADEA “forbids age discrimination against people who are age 40 or older.”  While EEOC notes that it is not illegal for an employer to favor an older worker over a younger one, there is nothing in the statute that requires it.  Oregon law provides similar protections to persons who are 18 years of age and older.  In other words, the law allows for the hiring of the better qualified candidate; it simply prohibits rejection of an age-protected candidate because of age.
Interestingly, last month EEOC filed suit against an employer for allegedly doing just that ~ rejecting an age-protected applicant because of his age.  According to EEOC’s press release, the employer “used information from employment applications to discriminate in hiring based on applicants' age and history of filing workers' compensation claims.”
The bottom line for employers is simple: devise selection processes that focus on the merits of candidates (e.g., education, experience and skills) and make decisions based on those merits.
Answer to Question #2 (Too Old To Accommodate):
The question as phrased is not fully answerable given the facts provided.  Should B3D provide this accommodation to Ron?  The answer to that is maybe.
A better question to ask is whether B3D should deny the accommodation to Ron because of his age.  The answer there is no.
Ron’s situation is nothing more than a garden variety reasonable accommodation issue.  That is how Karren should approach it. 
EEOC’s ADA regulations state that reasonable accommodation may include the “acquisition or modifications of equipment or devices” that “enable an individual with a disability who is qualified to perform the essential functions of that position”.  Ron’s request seems to match this in all respects.  He has asked that B3D provide him with a specialized mechanical device that is needed to help him with the essential lifting and carrying functions of his job.  If we assume from the facts that Ron is an individual with a disability, then his request is for a reasonable accommodation and that is how it should be analyzed.
Karren’s discussion with Ron of his request is part of the interactive process.  The “interactive process” is a flexible and informal communication between employer and employee to determine the appropriate accommodation, if any.  Karren has learned what Ron needs and has information regarding the cost.  However, we know from the fact pattern that Karren believes the cost is too high because of Ron’s age and proximity to retirement.
Put another way, Karren seems to believe that providing the accommodation Ron requested would be an undue hardship for B3D.  An otherwise reasonable accommodation is not required if providing it would cause an undue hardship.  The factors for determining that a particular accommodation would be an undue hardship include, but are not limited to: (1) the nature and cost of the accommodation; (2) the financial resources of the employer; and (3) the impact of the accommodation on the operation of the employer's business.
We know that B3D has financial issues.  While we are not told the specific cost of the mechanical device, the fact pattern suggests that Karren would view it as reasonable if she thought Ron were likely to work more than 2 to 3 more years.  Thus, we are talking about an age-based decision and that is likely to run afoul of the ADEA (and the ADA as well).
Let’s go back to the original question.  Should B3D provide this accommodation to Ron?  The answer to that is yes if the accommodation is reasonable and providing it does not result in undue hardship.  B3D needs to evaluate the request in manner and will want to be able to offer a legitimate non-discriminatory explanation as support for any decision to deny the accommodation request.
Just last week EEOC filed suit against an employer in a situation that sounds somewhat similar to our fact patter.  According to EEOC’s press release, the employer allegedly “committed age and disability discrimination when it terminated [an employee] after he was released to return to work after taking an approved medical leave for cancer and a hip fracture.”  The agency notes that the employee was 74 years old at the time of termination and had been with the employer for 52 years.  EEOC alleges that the employer forced the employee to retire despite the fact that he was fully released to return to work.  Even though we only know the agency’s allegations, it is clear that the agency believes the employer unlawfully focused on age instead of ability.
We hope you did well on this quiz.  If you have questions about it, please feel free to contact us.
Best regards,
The Bullard Edge

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