Blow Out Your Candles…and Clean Out Your Desk: The Dangers of Firing an Employee after Her 65th BirthdayNothing ruins a birthday celebration faster than a pink slip. Karen Ruerat, a receptionist, was terminated from her position at Professional Endodontics, P.C. four days after her 65th birthday. She alleges it was because of her age, and the EEOC is suing on her behalf, alleging violations of the Age Discrimination in Employment Act (ADEA).

The Details

Ruerat began working for Professional Endodontics in 1978 as a window greeter/receptionist. In January 2016, following 37 years of employment and, coincidentally, her 65th birthday, they terminated her. The EEOC complaint alleged that Professional Endodontics maintained an employment policy requiring its employees to retire at the age of 65, and Reurat’s termination was the result. Unsurprisingly, Professional Endodontics, in its answer, denied any and all contention that such a policy existed, as well as the claim that it treated Ruerat unfairly because of her age.

The Bigger Picture

Under the ADEA, it is unlawful to discriminate against a person because they are 40 years or older. In some limited instances, employers may avoid ADEA liability: (1) where age is a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business, and/or (2) where the differentiation is based on reasonable factors other than age. Generally speaking, however, any mention of age in relation to employment practices is likely to create red flags and employer headaches.

Fortunately, Professional Endodontics was able to resolve this claim by agreeing to not take any employment actions on the basis of age…and pay Ruerat $47,000. Professional Endodontics also agreed to supplement and re-distribute its existing policy with ADEA-specific language clearly stating that there is no mandatory retirement age and provide anti-discrimination training for the next two years.

What Does This Mean for Employers?

While there are clearly two sides to Ruerat’s story, employers can still take this opportunity to prevent future liability and litigation. Professional Endodontics likely did not have a mandatory retirement age; however, it also may not have clearly communicated its expectations/policies to its employees. Here, then, are a few items to help your company avoid a similar spat with the EEOC:

Avoid mentioning age (when possible) in your policies. The ADEA doesn’t have an upper age limit. Employers, then, should understand that you absolutely cannot institute a mandatory retirement age or anything that suggests people should retire. Age is a dangerous topic to broach, and for that reason employers should take care to thoughtfully review their current practices and policies.

Document employment decisions. In the normal course of business, there are countless personnel decisions made on a daily basis. It can be easy to lose track of what decision was made and why it was made. So employers should document all of their legitimate, non-discriminatory reasons when engaging in employment decisions. Create a strong paper trail so you can show that you fired an elderly employee because she couldn’t or wouldn’t do her job, not because of her age.

Use neutral communication. A lot of the tension created by employment decisions can be attributed to lapses in communication. As an employer, it is your duty to let your employees know where they stand. Whether that means reiterating performance standards or engaging in conversation over the seniority/merit/non-age based factors that you use to determine employment, be clear and stay neutral.

Provide training. With an increase in employee protections, it is never fruitless to invest in additional training opportunities for your staff. An ounce of prevention is truly worth a pound of cure. Whether the trainings are in person or through an online platform, ensure that your workers interact with anti-discrimination content regularly to help avoid any hostility, confusion, or miscommunications in the workplace.

As your employees gain experience, they gain years on the age clock. Old or young, be sure to manage all of your employees the same way.