Those of us who practice in the field of employment law have been faced
with the realization that, although our work-life expectancy has increased,
the age at which we are considered expendable and no longer capable of
making a meaningful contribution has been systematically reduced. The
inevitable result is that older workers are "forced out" of
their positions, well before their work-life expectancy is achieved.
Years ago it was not unusual for people to work until they, themselves,
felt they could no longer effectively perform. Now, performance often
plays no role when an employee is asked to leave the workplace. Instead,
age becomes the determining factor. Regrettably, some companies have actually
set ages at which employees face mandatory retirement, although many employees
looked forward to remaining at their jobs for a longer period. Although
they are physically and emotionally capable of a longer work-life, conditions
in the workplace frequently force employees, when they reach their 50s,
out of positions they are still fully capable of fulfilling and mastering.
It makes no sense, given the experience and energy that goes to waste
when this occurs.
We fully recognize, certainly at this time, the strong burdens placed upon
management to reduce costs. It is a fact that workers of age frequently
earn higher compensation than younger employees. Dispensing with older
workers, with higher salaries, rather than younger workers, might appear
to represent greater savings for the employer. Therefore, this can be
an enticing reason for management to force older workers out if the employer
is faced with a need to cut costs. However, that can be a hollow choice,
given the fact that we often find the younger replacements frequently
in need of more supervision, a period of adjustment and other unknowable
pitfalls that arise when experienced workers are removed from their positions.
There could well be greater employment costs and frequently a failure
to produce the expected and required results. We believe that is why the
operative laws against age discrimination provide that "age need
not be the only reason for the termination, but only one of the reasons."
Ostrowski v. Atlantic Mutual Insurance, 968 F.2d 171, 180 (2d Cir. 1992).
We recognize that "employment is at will." We must also recognize,
however, that termination that has a discriminatory basis clearly trumps
the concept of employment at will. And so the battle begins. Was the termination
based upon a reason that has been judicially deemed appropriate, or did
age play some role in the termination?
In other areas of
employment discrimination, it is inconceivable that we could find any factors that could reasonably
justify, or explain away, an act of employment discrimination. No one
can reasonably explain, or justify, how a man could do a job, but not
a woman. Or how someone in a minority group could not do the job of a
non-minority employee. But with respect to age discrimination, we find
that there are those in the workplace who argue, despite the laws that
provide otherwise, that the employer should be permitted to consider age
in its determination as to who should be hired and who should be fired.
They argue that the workplace belongs to the employer and that age should
not be considered a protected class. Some may even assert that market
forces will protect older people and they do not require the protection
of age discrimination laws. We say otherwise.
We believe age discrimination is an increasing epidemic. It has escalated
to the point that age discrimination now has a pervasive effect in the
workplace. This tidal wave of age discrimination must be addressed in
vigorous and meaningful fashion.