AGE DISCRIMINATION IN THE WORKPLACE

  1. Definitions (Framework)

Age discrimination is treating an applicant or employee less favorably because of his or her age. This treatment includes any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, harassment and any other term or condition of employment.

Whereas harassment refers to offensive or derogatory remarks about a person’s age, the law doesn’t prohibit simple teasing, comments, or isolated incidents that aren’t very serious. Harassment becomes illegal when it is frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision.

  1. Legal Aspect

Equal Employment Opportunity Commission (EEOC) protects employees under Age Discrimination Employment Act. ADEA forbids age discrimination against people who are age 40 or older. Even younger employees are not covered under Federal law, they are protected under some state laws.

Victim can file lawsuit within 180 – 300 days, and the award can range from as little as $100 to $300,000 (Warhawsky, n.d).

 

  1. Relevant Case (Sample Case)

There are many cases about age discrimination that in 2015 alone the total award nationally counts to $99 million. Ageism itself accounts for 20-25% of all Equal Employment Cases. There are so many forms of action that resembles ageism, for instance contrast discipline, harassment or favoritism on different age groups.

In some cases the older were treated adversely. There are instance when an employee reached a certain age – say, 50 or 60 – he would suddenly get more negative performance review. In other case, the older were let go couple years before retirement, in order to avoid paying pensions and benefits. Employers are also hesitant in hiring older employee because they don’t want to spend much training only to have replacement in the following short term. In fact, Brandman University in San Francisco paid $38,000 for discriminating a 64 years old Program Manager, Branham, by giving him extra works and indirectly forcing him to retire early.

In other cases young people are treated differently than the older employees. Due to the youngness, they did not get respect or equal treatment that they deserved as employees. Some young workers are dismissed because of age. For instance, in the case of Greer v Coulter (t/a Alphreso Cafe), small employer decided to dismiss a 17 years old worker to avoid having to increase her pay to the minimum wage rate when she reached 18.

Some cases involved inappropriate language to describe a young or old worker. Biased comments do happen in workplace where manager or fellow coworker would referred to victims as a “kid”, or “stroppy teenager” or in the case of older employees are as ‘off the hill’, ancient, or grandpa.

 

  1. Ethical Perspective

Ageism violates most of the normative ethics theory. The consequentialist would argue that the acts are morally right if the consequence of the act is positive. Therefore, ageism clearly deviates from the concept of utilitarianism that said the best act is the one that brings the greatest amount of happiness, as ageism brought disappointment for the victims and those surrounding.

However, ageism might fulfill the theory of egoism that emphasizes self-interest. Egoist argue that an act is morally right if and only if it best promotes the agent’s own interests. Thus, the person who discriminate employees based on age is morally right according to egoism.

As a part of nonconsequentialism, Kant’s theory of ethics also contradicts with ageism. The golden rule of ethics by Kant’s that said we must treat others the way we want to be treated, or coined as ‘universal acceptability’. However, the discriminator clearly would not want to be treated that way.

Age discrimination also treats humans as means instead of ends. Companies should have the commitment to treat others as humans instead of economic commodities. Employees who have maintain their performance should not be laid off during unprofitable point of the business.

How the Doer Justify their Conduct?

The justification that might be used includes but not limited to: running a profitable business, avoid the need to dismiss an older worker because of his performance reasons, business efficiency, and avoid dealing with healthy and safety issues of the workers. Regardless of the excuses, the practice of ageism signals unfairness conducts of the business and potentially results in bad reputation.

  1. Prevention / Solution
  2. Provide training that continuously emphasize the benefit to employees.
  3. Place older and younger employees in one team. This way, the young and older employee can work and learn from each other and build respect.
  4. Encourage mentoring so that older employees can pass experience and build relationships among different age.
  5. Detailed policy about ageism on company’s intranet or bulletin and audit it. Set parameters and definition before there is a real problem.

Company should ensure that everyone is informed about the policy. Company must emphasize that the organization will not tolerate any unfair treatment based on age.

  1. During hiring process, try to avoid stereotyping or require candidate to mention their birthdate. Inset a standard because currently the only standard is if it’s against the law.

Nowadays there are many human resources consulting firm that assist in building such prevention and solution in ageism.

  1. Auditing. When it’s new make it as often so that people can feel comfortable questioning the issue. When gathering data and do collection, company must ensure its confidentiality.

In terms of ethical prevention, employers can provide two processes. First, ‘just cause’ is providing reasons for discipline or discharge that deal directly with job performance. Second, the ‘due process’ is fairness of the procedures an organization uses to impose sanction on employees. rules be clear and specific, that they be administered consistently and without discrimination or favoritism, and that work- ers who have violated them be given a fair and impartial hearing.

(p. 300)

 

 

Reference

Warshawsky (December 12, 2012). How much is my employment discrimination case worth? Retrieved from July 24, 2017. http://warshawskylawfirm.com/lawyer/2012/12/05/Employment-Law/How-Much-Is-My-Employment-Discrimination-Case-Worth_bl6026.htm

 

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