Battling Age Discrimination

Downsizing. Layoffs. Early retirement.

We hear those words so often nowadays that we don't even question such news anymore.

But we should. A company's hiring and firing statistics can say a lot. Sometimes "downsizing" really means "out with the old and in with the new."

"Despite the fact that seniors can be bright, and athletic, strong and vital decades longer than ever before, there's still a perception that they are less effective as employees because of their age," says Tom Borek, an EEOC attorney. "And that's both unfair and foolish."

Age discrimination occurs for an array of reasons. Companies may cut older workers because they make the highest salaries. Or the business wants to promote a "young" image with younger workers. Or employers think younger employees will work for less money and be more flexible.

Although the EEOC's statistics show a drop in the number of age discrimination claims from 1993 to 1999, Borek says that doesn't mean the problem's going away. There were 14,141 claims in 1999 - down nearly a third from the 19,809 complaints filed in 1993.

"I think more people are now aware that it's illegal to discriminate based on age, but lots of employers still haven't lost their prejudices," says Borek.

He says many employers may have just learned how to cover their tracks.

Before Signing Anything -

The Older Workers Protection Act, passed in 1990, attempts to make it more difficult for a company to conceal its "true" intentions and, at the same time, protect the business from future lawsuits.

"Congress recognized that older workers sometimes have a tougher time getting back into the work force," says Frank Kollman, an employment attorney from Kollman & Sheenan in Baltimore. "The Older Workers Protection Act helps them make decisions with their eyes wide open."

It's common for employers who offer severance packages or early retirement options to require that employees, in return, sign away their rights to sue. That's OK under the law as long as they follow these rules:

• The waiver must be easy to understand.
• It must mention the Age Discrimination in Employment Act, so employees know exactly what types of claims they're giving up.
• The employee must get something extra in return for signing it, better-than-usual severance pay, for example. It can't just promise to give the employee what he or she is already entitled to.
• The waiver cannot require the worker to relinquish their rights regarding claims that arise after his or her job ends.
• The release must advise the employee - in writing - to talk to an attorney before singing it.
• The employee has to be given at least 21 days to sign it and has seven days after signing it to revoke it.

If a group of people is being laid off at the same time, the waiver requires even more company information. Employers must give employees 45 days to consider the agreement and disclose the job titles and ages of every person who's getting cut as well as everyone who still has a job.

If the Waiver's Not Valid

In some cases, employees can sign a waiver, take the severance pay and then sue anyway - if the waiver doesn't comply with the Older Workers Protection Act.

That's what Delores Oubre did. After working at Entergy Operation Inc. for 14 years, she received a poor employee review and was told she might be fired without benefits in the near future. She opted to take a $6,258 severance package and signed a waiver, agreeing she would not sue. She was 41.

Oubre was the oldest person in her department and the only person dismissed. She also learned that the waiver she signed might be invalid under the Older Workers Protection Act. She was not given 21 days to consider her options or seven days after signing the release to change her mind. It also failed to mention anything about the Age Discrimination in Employment Act. She decided to sue the company nine months later and refused to return the severance pay.

Eventually her case made it up to the Supreme Court, after a federal trial judge and the 5th U.S. Circuit Court of Appeals said she could not sue if she kept the severance pay, thus ratifying the waiver she signed. However, the Supreme Court agreed with her in 1998.

Before Accepting Severance

"In most cases, once you sign a release, you're done," says Kollman. "You can't go back to the company and try to sue. If you don't like it, you're perfectly free to reject the deal and then sue."

Borek says to always question a company's motives - whether or not it decides to use a waiver. Companies aren't necessarily hiding anything either way, but some businesses might feel that requiring an employee to sign a waiver is also asking for a discrimination claim.

"In some ways it's a risk for employers to require employees to sign releases," says Kollman. "It suggests to the employee that maybe the company is doing something wrong."

But he says the benefits of using waivers usually outweigh the risks.

What Should You Do?

If you're 40 or older and feel forced into signing a waiver or taking early retirement, there are a couple of steps to take:

• File a company complaint with the human resources department.
• Talk to an employment attorney.
• File a claim with the EEOC. Remember, though, that if you have to make a decision in 21 days, you should talk to a private attorney at the same time. It's unlikely the EEOC will respond in three weeks.

Know your rights and act on them. Even though the EEOC says almost 300 Woolworth's employees were fired because of their age, only 55 formal complaints were made.

Web links:

Equal Employment Opportunity Commission

Discrimination Message Board for more help