Lay Offs and Age Discrimination

While some employers may always choose to overlook the old adage, “Last Hired, First Fired (Laid Off), it’s important to keep this in mind when you and your co-workers start hearing that more layoffs are coming. Seniority should have its perks, although early retirement plans and other employer devices are rapidly eroding this well respected principle of the past. Even a number of highly experienced government postal workers are now being asked to accept early retirement plans since they’re not at the very highest rungs of the seniority list and aren’t interested in relocating to new cities or suburbs away from their families.

Long before you ever expect a layoff, be sure to research how your employee benefits might be affected by such an event so you can immediately start planning ways to improve your financial security.

Workplace Age Discrimination is Becoming Entrenched

At least as far back as 2003, The New York Times was publishing articles with titles like: “The Unretired; As Layoffs Rise, So Do Age Discrimination Charges.” That article discussed how baby boomers and others have so flooded the job market that there’s been a major surge in the filing of EEOC age discrimination cases. When you factor in the harder economic times that later developed in the same decade, older workers may have valid reasons to worry.

Furthermore, the U. S. Supreme Court’s decision in the 2008 Gross v. Financial Services FBL, Inc. case will probably have a very chilling effect on the success of many future EEOC filings and court lawsuits based on age discrimination charges.

Prior to the Gross decision, there was a basic two-step approach for deciding age discrimination cases. First, the complaining worker had to prove that age was one of the deciding factors in the employer’s lay-off, demotion or other negative employment acts. Then, it was the employer’s duty to prove that it had a legitimate, non-discriminatory reason, unrelated to age, for making its decision.

Now, the Gross case has so changed the applicable standards that employees will now have to bear the full burden of proof and show that age was the deciding factor that caused the employer to make its decision. Since employees are rarely privy to the private conversations of their superiors, this standard is very likely to make it much more difficult for age discrimination claimants to prevail in the future.

Lay Offs from Small and Big Companies

A surprising number of large corporations and smaller companies appear to be taking advantage of the slow economy. A number of them are laying off their older workers who have strong benefit packages. They then either refuse to rehire them or only offer them lower paying jobs without benefits. Some of these companies expect almost lockstep acceptance of longer workweeks and hours in exchange for a much less valuable job package. While giving little thought to the damage they are inflicting on many workers’ personal and financial lives, these companies are greatly improving their own bottom lines.

As of 2009, some IBM employees are being told that they don’t have to lose their jobs if they’ll just relocate, through a program called Project Match, to such far off countries as: India, Nigeria, Russia, Argentina, Brazil, China, the Czech Republic, Hungary, Poland, Romania, Slovakia, Slovenia, South Africa, Turkey and the United Arab Emirates. A few of the lucky ones may just need to move to Mexico. These are rather unusual offers since most workers would prefer to continue living around their extended family and friends here in America.

However, when you’re unemployed, it can seem appealing to move almost anywhere to start receiving a paycheck again. In fact, hundreds of thousands of Americans live all over the world, even in Iraq, in order to simply receive a paycheck or one much larger than they could ever find on home soil.

Preparing for Age Discrimination in Lay Offs

1.      Consider Retraining in a New Field

If you’re laid off, consider seeking training in a new field. The U. S. government is still offering to train many displaced workers in jobs that will benefit the environment. Some of these jobs involve building more environmentally friendly and energy efficient homes and offices. Many workers are now being taught how to install solar panels or improve building insulation.

2.      Give Serious Thought to Starting Your Own Home-Based Business

The evening news and other programs often feature average citizens pursuing new types of jobs they’re able to thoroughly check out ahead of time before investing in them. Some people have turned themselves into       neighborhood handymen, pet caretakers or medical billing specialists. Your entrepreneurial ambitions may even get you noticed by others who might want to hire you in your former area of expertise.

3.      Don’t Give Up Pursuing Your Valid Legal Claims

If you strongly believe and can prove that you were solely laid off from your job due to your age, it will always be wise to seek out the advice of an attorney and consider filing an EEOC charge. Even though it may be much      more difficult to prevail in the immediate future following the Supreme Court’s ruling in the Gross case referenced above, it will take new filings and lawsuits to challenge that ruling and hopefully get it modified or nullified. New legislation may be the quickest and most effective means for neutering that unfortunate decision.

Hopefully, the Gross decision is an isolated case and not a harbinger or first sign of a wave of more restrictive legal standards to be established by the courts in response to all types of discrimination claims.