Age Discrimination Claimed For Failure to Rehire Former Employees
The Equal Employment Opportunity Commission (EEOC) had hearings last month on recent and alarming developments in age discrimination including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions.
In keeping with its commitment to aggressively enforce the Age Discrimination in Employment Act (ADEA) the Commission announced on Thursday that it filed an age discrimination lawsuit against AT&T and a number of its subsidiaries.
A successful outcome, which is no doubt years away, would be a huge victory for older workers.
About The Case
AT&T, like many companies, offered various retirement incentive programs over the last few years, in order to reduce its workforce. In those types of programs, employees who meet the qualifications (usually a combination of age and years of service) are offered enhanced severance packages if they voluntarily leave the company.
Some of those employees later applied for openings at the company, but were not hired because they had previously participated in the program.
Since October of 2006, AT&T has maintained a policy which prohibited hiring employees who retired under these plans.
The suit maintains the AT&T’s no-hire policies have a disparate impact on employees and applicants for employment who are age 40 and over in violation of the ADEA.
The suit further maintains that AT&T has no legitimate reason or purpose for this policy.
Disparate Impact Lawsuits
Generally speaking, there are two types of employment discrimination cases involving protected classes (age, race, gender, national origin, religion, disability, veteran status) of individuals.
1. Disparate treatment cases:
- involve proof that an individual was treated differently/discriminated against because of his/her protected characteristic
- requires proof (with either direct or circumstantial evidence) of intentional discrimination
2. Disparate impact cases :
- involve the company’s use of a neutral policy which adversely/more harshly affects a protected group
- proof of intentional discrimination is not required
- the plaintiff need only prove that the policy, while neutral on it’s face, has a disparate impact on a protected group when applied to current or prospective employees
- employer must prove a legitimate business reason (a reasonable factor other than age) for the discriminatory policy
Disparate impact litigation was widely used in the 1970’s to combat race discrimination, particularly in the South. It has also been used to challenge various policies and practices which have adversely affected women in the workplace.
It wasn’t until fairly recently that the Supreme Court recognized the use of a disparate impact analysis as a way to prove age discrimination.
Therefore, there are very few cases on this topic, and none that I know of which has challenged a company’s policy of not hiring former employees who accepted severance packages, voluntarily retired, and then later applied for open positions.Continue Reading...