Terminating Older Employees Lawfully

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The age discrimination and employment act (ADEA) protects the worker age 40 and over from discrimination.  This does not mean that an older worker cannot be fired for good cause.  It must be accomplished correctly.

Legal Reasons for Firing an Older Worker

The following are legal reasons to terminate an older worker:

  • Fire older workers for inadequate job performance and good cause (e.g., tardiness or intoxication);
  • Entice older workers into early retirement by offering additional benefits (e.g., bigger pensions, extended health insurance, substantial bonuses, etc.), which are voluntarily accepted;
  • Lay off older workers, provided younger employees are treated similarly;
  • Discriminate against older applicants when successful job performance absolutely requires that a younger person be hired for the job (e.g., in the case of a flight controller).

Avoid Age Discrimination Suits

Proper Documentation

This is essential to protecting your business from an age discrimination lawsuit.  Policies regarding age and other types of discrimination should be set out clearing in employee manuals and posted in employee lounge areas.  This should be updated regularly.

Provide the employee with written evidence of poor performance, tardiness, or intoxication.

Use progressive discipline,  for  example  a verbal warning, written reprimand,  suspension with pay, suspension without pay and a final termination would provide documentation of poor performance. 

Be Consistent

Discipline applied to older workers must also be applied to the younger work force in the same manner.  You cannot fire an older worker for an infraction and give a younger worker a warning for the same misconduct.

Monitor and study your companies hiring and firing patterns often, to make sure your are not placing your company in jeopardy by firing older workers than younger ones.

Getting Legal Help with Age Related Employment Issues

As the general work, population in this country continues to age, eeoc lawsuits grow in proportion.  adea law and employment discrimination law in general is complicated.  Hire a good employment law attorney to look at every aspect of your business from your employment advertising to exit interviews.  This not an area to skimp on your budget, doing so may cost you more in the end.


Avoiding age discrimination law suits will save a company time, money, and frustration.  The best method for avoid lawsuits is to make certain your management staff is trained in employment discrimination issues.  Older employers can be terminated legally for good cause.  Protect your company with written documentation, be consistent with discipline, keep up to date employee manuals and policies, monitor your hiring and firing statistics, and consult legal counsel.  Good legal advice can be a cost effective way to prevent lawsuits and future headaches.

This article is provided for informational purposes only. If you need legal advice or representation,
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