Avoiding Age Discrimination Claims

Employees grow older in every workplace.  It’s a naturally occurring inescapable phenomenon.  What if your office has an employee who just won’t quit, even though he or she might have reached retirement age, and you want to hire a new employee for the long-term growth of the practice?   Age discrimination is one of the most difficult types of discrimination to deal with, since plaintiffs  don’t have a large burden to get an age discrimination case to a costly trial.

The prima facie, or minimum, standard a plaintiff has to meet in an age discrimination case is four-fold.  First, they have to establish that they are only 40 years old or older.  Second, they have to establish that they met the employer’s legitimate job expectations, or in other words, they can still do their job.  Thirdly, a plaintiff must establish that they were terminated, or an “adverse action” reducing their hours or duties was taken by an employer.  And finally, the employee must establish that they were replaced by an employee who was younger than the terminated employee by five years or more (or that the employer continued to seek applications for the open position).

Once the terminated employee establishes that prima facie case, the employer must establish that they had a legitimate nondiscriminatory reason for the termination.   If the employer states that reason, the plaintiff must show that this reason was not the real reason for the termination, but only a “pretext.”  Under Massachusetts law, “pretext only” sufficient to state a case for a plaintiff, but in federal law in cases involving the Age Discrimination in Employment Act, additionally some form of intent to discriminate must usually be shown to get to a full trial on the claim.

So, what should a dental office in particular use as policies to prevent age discrimination claims from being filed, or losing this kind of case at trial?   First, there should be a clear indication of “bona fide occupational qualifications” that employees with particular duties must meet.  For instance, for safety reasons if a dentist, hygienist or dental assistant loses enough dexterity in their hands that they can’t work in a patient’s mouth without it being a safety hazard, the employee cannot meet the dental office’s legitimate job expectations.  This can be tricky, though, because disability discrimination statutes can also be a factor, and may require a transfer of the employee to a job that they can handle effectively and safely.

Second, make sure that this is a voluntary leaving of the practice.  Just offering a severance package but still forcing retirement can still allow for an age discrimination claim.  Convincing the employee that they should really consider retiring or leaving their job is not an easy task, but if done with care and compassion, can ensure that no age discrimination claim will be filed when the employee leaves.  Almost always, with an employee over 40 years old, they should sign a waiver of their rights to sue under the ADEA or state law.  That waiver is not sufficient if it is compelled, however.   Finally, don’t start taking applications before the employee is terminated, especially from younger potential employees.

Business reasons can be legitimate and nondiscriminatory, and are usually the best defense an employer can provide if there needs to be a reduction in employees for business expense reasons.   The legitimacy of this reason is only established with clear and specific details as to why this was a necessary and appropriate business decision.   Looking for someone to let go because it might save on the expense of the costs of the higher wages of an older employee is not usually a sufficient legitimate reason.

Good cause for dismissal is also a legitimate reason for dismissal, regardless of the employee’s age.  Make sure and document that office policy or statutory violations have taken place, warnings given, and the employee still hasn’t rectified the situation.   Looking for minor violations as a reason to discharge an older employee will often lead to legal trouble further down the road.  Giving the employee multiple chances to correct behavior or improve performance is always a good policy, and any process to enforce office policies with a warning system should be written down in an employee handbook.

Remember, with age comes wisdom, so it is good to give older employees a chance to prove their worth to the practice before looking to replace them or asking them to retire.



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