When is it age discrimination?

When can we ask applicants for their dates of birth?

Many employers feel that asking for the Date of Birth for a Criminal check is a violation of EEOC. Can you help me justify my need to check employees out before hiring and screen their background which requires disclosure of Drivers License and Date of Birth to obtain criminal records.

Rita Risser responds:

You are right that asking for date of birth (DOB) can be a violation of the age discrimination in employment act. At the same time, you need DOB to do a criminal background check.

The way around this is to do background checks on applicants only after you have decided to hire them. Call the applicants, or send a letter that says, “We have decided to hire you, contingent on passing the criminal background and driving records check. In order to do that, we need your date of birth.” This way, it is clear that your decision to hire is not based on age.

Older worker constructively discharged when moved to “death cubicle”


Mr. Ramos had been employed for almost 20 years, most recently as a budget supervisor, when a new accounting manager was hired. The manager made several comments about wanting “to get rid of old things” and “to bring in new blood” and “to change everything that was old.”

A short time later, Mr. Ramos was replaced by a younger woman whom he had recently trained. Ramos’ pay and benefits were not changed. Ramos was told that the decision had been made and he could “take it or leave it.” Ramos agreed to the decision, and then took his vacation which already had been scheduled.

When he returned to work, his office assignment had been changed. The younger woman was in Ramos’ former cubicle, and Ramos had been transferred to “the death cubicle,” so named because all employees who had been assigned to it left the company. In his new cubicle, Ramos found his personal belongings in a box on the floor and an obsolete, non-working computer on his desk.

Ramos’ manager demanded that Ramos produce some reports, which Ramos could not produce since his computer was not working. Finally, the manager stood in the entrance to Ramos’ cubicle and threatened Ramos with an assault. Shaken by the confrontation, Ramos began to cry and went to the company infirmary. Ramos was excused from work by the company doctor; he never returned to work, and was diagnosed with depression.

Ramos sued and won $300,000 before a jury. The verdict (and attorneys fees of $36,500) were upheld on appeal by the First Circuit Court of Appeals.


Failure to redeploy older worker is age discrimination

Scott, age 61, retired after 41 years of employment. After retiring, Scott claimed he was constructively discharged when (1) his position was eliminated following a restructuring and (2) he was offered early retirement instead of redeployment. The District Court granted summary judgment for the employer; the 6th Circuit (2-1) reversed.

(1) Scott proved a prima facie case of constructive discharge. Although the employer formally gave Scott three options (layoff without benefits or recall rights, layoff with benefits and possible recall, retirement with a lump sum payment and monthly checks and health benefits), there was evidence that he was coerced into retirement. The employer’s HR executive refused to discuss the reasons for eliminating Scott’s job or the possibility of future employment, although it was customary to do so. There was evidence that the executive used the term “laid off” with Scott but not with others who were redeployed.

(2) Scott proved a prima facie case of redeploying younger employees while not redeploying older ones. Two employees in their 60’s were not redeployed. Statistical evidence showed there was a seven year age difference between those whose positions were eliminated and those whose positions remained intact. One manager allegedly said the company “is run by white haired old men, waiting to retire,” and “This must change,” and another allegedly said those who lose their jobs will be replaced by “young college graduates at less money.”

(3) There is a jury question as to pretext. The employer claims it was reducing management to gain efficiency. Yet there was evidence of age bias reflected in the statements quoted above, the HR executive was ordered not to answer routine questions from Scott, the oldest employees were not redeployed, and statistical evidence suggested age was a factor.

The DISSENT argued that (1) the statistical evidence was too flawed to support an inference of bias and (2) the managers’ statements alone are not enough in light of evidence that Scott was not as well qualified as others.

What do we do when employee changes his mind about retiring?

A long-term employee, age 65, tells his manager he plans to retire in 12 to 18 months and participates in training his replacement to accommodate his retirement. Near the end of 18 months he tells his boss he’s changed his mind and wants to continue in his job. Can his manager say, sorry, we’ve made significant business plans and changes based on your previous decision and you’ll have to retire or accept some other job within the Company, if one is available? Or, must his manager accede to his request, since a person can’t be “forced” to retire.

Rita Risser’s response:

From a strictly business perspective, who is the best person for the job — the experienced employee, or the new trainee? If you don’t have a legitimate business reason for preferring the new hire over the experienced employee, then go no further. Keep the man with experience, and move the trainee into another position, or lay him off due to job elimination.

If the new trainee for some reason is preferable to keep from a business perspective, the issue is extremely gray. I am not aware of a case like this, but here are some thoughts based on general principles.

You are right that people can’t be forced to retire. You can’t discriminate on the basis of age. One question is whether in the past you have had younger employees who decided to quit and then changed their minds. How did you handle those situations? If you let them go anyway, that would tend to show that letting this person go is not discriminatory. If you let him go, however, do not force him to retire. Let him go as you did the other people. It is up to him to request retirement.

If you have not had such situations in the past, or even if you have, the safest course of action is not to let him go. Even if he doesn’t have an age claim, he might have a suit for wrongful termination based on the covenant of good faith and fair dealing. By keeping him in his current job, you avoid any such claim. If he is not as qualified as the new trainee, you might be able to transfer him to a lesser job without liability.

To summarize: The safest course of action is to keep him in his current job and lay off or transfer the new trainee. Second best, if you can prove he is not as good as the new trainee, is to transfer the experienced employee to another job. Third, if the experienced employee is not qualified for any job in the company and you have let go younger employees in similar situations in the past, you may be able to terminate him. However, since on its face any adverse action looks like it is based on age, I advise the first course of action.

They say I’m too young — is that illegal?

I was told by my boss that he will not give me an outside sales job because I do not look old enough! I am 30 and have performed the job well. The outside position is setting up National Accounts and I have been doing that for the last 8 months. As a matter of fact I have signed more accounts than any of the people he has hired working outside. Should I follow this up?

Rita Risser’s response:

In most states, it is not illegal to discriminate against employees because they are too young. The federal law only protects people from discrimination if they are over 40 and considered “too old.” The state of Wisconsin, New Jersey, the city of Santa Cruz, and a few other places prohibit the type of discrimination you’re experiencing.

From a values perspective, it doesn’t really make business sense to refuse to promote someone like you with a proven track record. Maybe you should suggest to your boss that he give you a trial period of a few months to see how you do. If you do great, then obviously you’re not too young. If you don’t do well, you will go back to your current job voluntarily.

Age Discrimination Claims Growing in High Tech

– By Rita Risser

High tech is a young industry. The average age at many high tech companies is under 40. Lawyers at those companies say the number of age discrimination claims is growing. That’s why mangers must be careful to treat employees over 40 with utmost fairness and respect.

Older workers have been particularly successful in claiming constructive discharge. This is where working conditions are made so intolerable that a reasonable person would feel forced to quit.

A recent case involved Mr. Ramos, a budget supervisor. Mr. Ramos was replaced by a younger woman whom he had recently trained. Ramos’ pay and benefits were not changed, so technically it was not a demotion.

A short time later, the younger woman was assigned to Ramos’ former cubicle, and he was transferred to “the death cubicle,” so named because all employees who had been assigned to it left the company. In his new cubicle, Ramos found his personal belongings in a box on the floor and an obsolete, non-working computer on his desk.

Ramos’ manager demanded that he produce some reports, which he could not do since his computer was not working. Finally, the manager stood inside Ramos’ cubicle and threatened to hit him. Ramos began to cry and went to the company doctor. He was excused from work and never returned. He was later diagnosed with depression.

The First Circuit Court of Appeals upheld the jury verdict of $300,000 in Ramos favor. Ramos v. Davis & Geck, Inc., ___F3d___ (1st Cir., 1999)

The practice of “demoting but not demoting” is not uncommon, and the courts have no problem recognizing it as age discrimination or wrongful termination. In a case decided by the California Supreme Court, an employee who had all his job duties taken away was allowed to go forward with his case for constructive discharge. Mullins v. Rockwell International, 15 Cal.4th 731 (Cal., 1997)

Another common claim arises out of restructurings. If younger workers are redeployed, but an older one is laid off without opportunity for redeployment, that is recognized as age discrimination. Scott v. The Goodyear Tire & Rubber Co., 160 F.3d 1121 (6th Cir., 11/20/98)

Older and younger workers should be treated identically when discussing career development, future openings with the company, and redeployment.

One tricky area is asking older workers about their plans to retire. Many courts say that mangers can make “reasonable inquiries” into an employee’s future plans. The issue, of course, is what is reasonable.

Many of the federal Courts of Appeals that have ruled on this have held managers can ask about an employee’s plans to retire, IF the employee starts talking, formally or informally, about retirement. The courts note that management has the right to know people’s plans so that management can plan for turnover. Cox v. Dubuque Bank & Trust Co., 163 F.3d 492 (8th Cir., 1998)

However, if the retirement talk leads to gossip, rumor and unreasonable inquiries, courts have said that may lead to a claim of illegal harassment. Guthrie v. J.C. Penney Co., 803 F.2d 202, 208 (5th Cir.,1986)

That’s why we recommend:


  • Don’t ask employees about their plans to retire, ever
  • If an employee starts talking about retirement, contact HR or legal before following up
  • Ask all employees, as part of the performance appraisal goal setting process, about their future plans with the company


Employers Win Some Age Cases

Despite the success of older workers in some types of cases, employers are winning others.The most important may be recent decisions interpreting the 1993 U. S. Supreme Court decision in Hazen Paper v. Biggins, 507 US 604 (1993).

The First Circuit has now echoed the majority of the Courts of Appeals holding that the disparate impact theory is not allowed in age discrimination cases. The disparate impact theory is that certain “neutral” criteria are correlated with prohibited classifications, and therefore cause illegal discrimination.

For example, if a company only hires sales people who play golf, that will have a disparate impact on women, because fewer women play golf than men. The disparate impact theory is allowed in sex, race, religion and national origin cases.

In a 1999 case, Raytheon was sued by an older worker. His job was downgraded as a result of a corporate-wide restructuring of senior executive positions. The employee argued that since most senior executives were older, the restructuring had a disparate impact on older workers.

The court held that it could not review the decision under the disparate impact theory, only disparate treatment. The employee lost because he could not show he was treated differently because of his age.


OK to Fire HR Director Who Can’t Work 50+ Hour Weeks

A Director of Human Resources who routinely worked 50 to 70 hour weeks went on six weeks leave for a heart condition. She sought to return to work at 40 hours per week. The employer refused to reinstate her.She sued under the ADA and the FMLA. The Court of Appeals held that working long hours was an essential function of the job, and therefore she could not be reinstated under the FMLA.

The court also held that the inability to work more than 40 hours a week was not a disability that substantially limited the activity of working. She was disqualified only from a narrow range of jobs. Therefore she wasn’t disabled under the ADA.

“Youth Discrimination” Now Illegal in New Jersey

Like many states, New Jersey has a state law that prohibits age discrimination. Most state’s laws are modeled on the federal law which applies to workers over 40. But New Jersey’s law says only that it prohibits discrimination on the basis of age.Sisler, age 25, was hired as vice-president of a bank’s credit card operations. The bank’s chairman appeared shocked to learn of Sisler’s age, and asked him not to tell anyone. Eight days later the chairman and the president met with Sisler and said they “didn’t think this was going to work” and he might be terminated. Sisler was offered a different job, which he refused. He was fired five months later and replaced with a 31-year-old.

The New Jersey Supreme Court allowed Sisler to go forward with his claim, even though he was not a member of “the historically disadvantaged class of older workers.”

Big Verdicts & Settlements:


UPS agreed to pay $12.1 million to settle a class action race discrimination case brought by part-time employees denied promotions.
$2.1 million upheld on appeal for woman auto service writer who was daily defamed, degraded and assaulted.
$1.85 million agreed to be paid by a Salinas agricultural company in EEOC class action for sexual harassment.
$1.3 million paid by the City of El Segundo to settle two sexual harassment claims on the eve of trial.

By the Numbers:

Number of state & federal discrimination cases appealed from jury verdicts in first quarter 1999: 14
Number of jury verdicts won/upheld: employees – 11/9 employers – 3/3
Average jury verdict: $1.2 million
Average award on appeal: $550,000




Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

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