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The Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA) prohibit employment discrimination against anyone age 40 or over in the United States. Specifically, the ADEA and FEHA prohibit mandatory retirement in most job sectors, with certain limited exceptions.
An age limit may be legally specified in certain limited circumstances where age has been shown to be a “bona fide occupational qualification” (BFOQ) and such a policy is necessary to the normal operation of the particular business.
In practice, BFOQs for age are limited. One example would be the obvious requirement of hiring a young actor to play a child in a television show or movie. Another BFOQ is when public safety is at stake. This requirement has been upheld for pilots and bus drivers.
The reality of today’s world is that, increasingly, workers are staying active in their careers longer than in previous years. Studies are showing that many U.S. workers can’t afford to retire at age 65 or until their 70s.
Many employers are concerned that older workers will have problems learning new tasks quickly, or that their physical health and stamina might become a problem. Often, companies are slow and/or reluctant to adapt to an aging workforce.
Due to the reality expressed above, however, more and more companies will be dealing with older employees in their workplace population.
Questions come to the Helpline on how to deal with an older worker who is not performing up to acceptable standards. Often, a simple adjustment in job duties may solve the problem—such as assistance in lifting/carrying heavy loads on an infrequent basis.
When the performance problem is not easy to solve, however, counseling often is the answer. Meet with your employee and specifically outline the problems. Often, the problem can be resolved by working with the individual to improve the situation.
Before taking any disciplinary or termination steps involving an employee in any protected category, including older employees, it is best to consult with legal counsel. Age may not be the only issue and your legal counsel can help you sort through the various types of legal protection that should be reviewed before taking action.