For months, legal experts have been predicting a rash of age discrimination lawsuits stemming from layoffs or firings of older workers during the COVID-19 pandemic. While protected by law against age discrimination, older workers do often face issues in the workplace. Not surprisingly, the pandemic has proved to be a challenging time.
Ageism and COVID-19
When it comes to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has been clear in stating that employers are prohibited by the Age Discrimination in Employment Act (ADEA) from involuntarily excluding older individuals from the workplace during the pandemic. This is true even if the action is out of concern for the older worker.
In light of the Centers for Disease Control and Prevention findings that individuals age 65 and older are at higher risk for a severe case of COVID-19, the EEOC has encouraged employers to be more flexible with workers in this age group. Despite this encouragement, older employees are not due accommodations just because of their age. ADEA prohibits firing, harassment, and other discriminatory practices based on age but does not allow for accommodations similar to those provided in Title VII of the Civil Rights Act to other protected characteristics, such as disability and certain conditions related to pregnancy.
Older employees may not be singled out for vaccine mandates by their employer. While EEOC guidance has clarified that employers may mandate all employees get a COVID-19 vaccine, except for those seeking religious or disability accommodations, the agency did not clear the way for employers to insist that only older workers be vaccinated.
Age discrimination settlements
While not related to COVID-19, the EEOC has settled lawsuits in the last two months in favor of older workers. These settlements are positive signs for fighting ageism in pandemic times.
Here are a few of the recent settlements:
- Computer Sciences Corporation, a large technology consulting firm, will pay $700,000 in lost wages and damages to former employees who were let go as part of a series of layoffs that targeted workers aged 40 and older. In addition, the CEO of CSC's parent company will issue a statement to all employees that age discrimination will not be tolerated. The company must also revise its layoff procedures to ensure they are in compliance with laws protecting older workers.
- United Precision Products, an aerospace components manufacturer, will pay $60,000 to a former applicant who at age 64 was asked for his age, date of high school graduation, and driver's license in a pre-employment interview. The company then refused to hire the applicant. In addition to providing monetary relief, United Precision will have to provide training on the ADEA and revise its discrimination policy.
- Hennepin Healthcare System in Minnesota will revise its employment practices to eliminate what was called a Late Career Practitioner Policy. In violation of the ADEA and Americans with Disabilities Act, the policy required workers aged 70 and older to undergo age-related screenings and medical exams. Affected employees will receive monetary relief as well as reimbursement for out-of-pocket expenses related to the exams.
We at Barrett & Farahany hope you are staying safe and healthy. If you have questions about age discrimination in the workplace, about policies related to older employees, particularly in light of COVID-19, or about the ADEA and other laws that protect older workers, please don't hesitate to reach out. One of our experienced attorneys would be happy to help.