WorkWise: Economy, graying workforce ramps up age discrimination talk

By Dr. Mildred L. Culp

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Two main forces -- a declining economy and the graying of the workforce -- are causing people to ramp up discussions about age discrimination in layoffs and severance. The wise ones, ages 40 and older, are checking with attorneys as a first step.

If you look closely, you'll see employers giving themselves away. "Employers will cleverly pick one person under 40," reports Donna Ballman of Donna M. Ballman P.A. in Ft. Lauderdale, Fla. "When times get more difficult, you see more blatant forms of all types of discrimination." Tim Davis of The Lawrence Firm P.S.C., in Cincinnati, mentions that they also "push older employees off into early retirement to get rid of them."

PROTECTING YOURSELF

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Under the Age Discrimination in Employment Act (ADEA), employers must follow certain guidelines when they're offering severance, according to Andrew Milne, senior counsel with the Bethesda, Md., firm of Garson Claxton L.L.C.:

Watch for undue pressure to sign release of claims when handed a severance package. "You must be given at least 21 days to think about the package," Milne states, "when you're terminated but not part of a group."

You must be given the option to revoke the waiver within seven days after you sign it. "This must be set out, in writing, in the release of claims," he notes.

You also have rights if severance accompanies a layoff or early retirement program, he indicates. The ADEA stipulates a period of 45 days or more to make your decision, along with the seven-day revocation provision.

Milne further observes that these requirements alone, unmet, won't give you enough to sue. However, if you have evidence of age discrimination, a signed release that doesn't follow ADEA guidelines won't block you from pursuing your age discrimination claim.

"Your employer also must give you written information about other employees in your unit, identifying (by job classification and age) how many are being laid off (or offered early retirement) and how many are not," Milne adds. Take this to an attorney to assess whether employees over 40 are being targeted. The content of the meeting could help you determine whether suing is something you really want to do.

SELF-PRESERVATION

Don't assume that you've wrapped up everything up at this point, advises Martin Gringer of Garden City, N.Y.'s Franklin, Gringer & Cohen P.C. "It's hard for an individual to show a pattern of discrimination based on those ages. That's a start, but it's only a start. There can be all kinds of reasons people are let go. When positions are being consolidated, one person might be missing one skill set the other has. You're still operating somewhat in a vacuum."

Ballman suggests that you keep all documentation about your situation in a place outside of the office and that you "speak up for yourself without being a royal pain. Don't make yourself an easier target by coming across as afraid to lose your job and complaining. Don't make yourself an easy victim of a bully."

She also advocates responding in measured tone if you receive a poor review that you consider unjustified. "Write a calm, business-like response explaining how they have it wrong so you have a record to protect yourself -- not a long letter about how the company is messing up. You can be fired for being a troublemaker."

But the best protection, Garden City's Gringer says, is to "do a good job. Companies want to have good employees and don't want to get rid of good ones. Keep up with the skills and remain productive."

Then, if you are terminated, don't give up. Bounce back. Ballman says, "I've advised many people who've been laid off to look around and look higher. You might well be qualified for a promotion."

Dr. Mildred L. Culp welcomes your questions at culp@workwise.net.