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Older workers cry foul as employers slash jobs
By: Jane M. Von Bergen
Chicago Tribune, July 28, 2002
The number of age-discrimination complaints filed
with the U.S. Equal Employment Opportunity Commission has risen 23.5
percent in the last two years--the fastest-growing category of
discrimination cases.
The number of complaints tends to rise as the number of layoffs increases,
said Paul Boymel, an EEOC senior attorney who specializes in age
discrimination.
While age-discrimination laws also cover hiring and promotions, the
majority of the cases filed have to do with unfair termination practices.
In 1999, there were 14,141 complaints filed. Two years later, the number
increased to 17,405 for a fiscal year that ended Sept. 30, shortly after
the Sept. 11 terrorist attacks kicked an already sputtering economy into a
crisis of layoffs.
The last significant spike began in 1991, rising to its height of 19,809
claims in 1993, at the heart of the economic downturn in the early 1990s.
"Age charges went up significantly at that time and then started
declining as the economy picked up," Boymel said.
The main law governing the cases is the 1967 federal Age Discrimination in
Employment Act, which applies to workers who are 40 and older. That group
now numbers 67.5 million, said Ron Bird, an economist with the Employment
Policy Foundation in Washington.
Boymel said that, for the most part, employers are learning how to lay off
workers in a way that averts litigation, and employees are gaining a more
realistic understanding of what will fly in court. Michael McGinn,
Executive Transition Group Inc. chief executive officer and a former
priest who has not only laid off people but also found jobs for them in
his career as an outplacement manager, said downsizing companies plot
layoff strategies carefully.
They typically create a matrix listing each person's age, race and
gender--making sure the layoffs are carefully spread among those
categories, he said.
Sometimes, part of the goal of a mass layoff is to get rid of unproductive
workers. If one happens to be in his 50s, the company will probably
include another 50-year-old in the matrix just to make sure the
unproductive worker can't sue for age discrimination, McGinn said.
To prevent litigation, more and more employers are incorporating waivers
into their layoff strategies, Boymel said.
Employers who voluntarily offer severance packages during mass layoffs
often require older employees to sign a waiver promising not to sue for
age discrimination in order to get the severance pay and other help, such
as outplacement counseling.
"It must be voluntary," Boymel said. "You can't make their
last salary check dependent on signing the waiver."
In 1986, to regulate the use of waivers, Congress passed an amendment to
the 1967 law, the Older Workers Benefits Protections Act.
When there is a mass reduction in force and the employer offers a
voluntary severance package with a waiver, the employer should also give
workers a list of those to be laid off.
The lists don't provide names, just the ages and positions for each
worker, said Mary Ellen Maatman, an associate professor who teaches
employment-discrimination law at Wilmington's Widener University.
"What you are doing is giving [older workers] the information to see
if they have an age claim," Maatman said. Depending on the type of
layoff, employees have 21 to 45 days to examine the information before
making a decision and an additional seven days to change their minds after
making the decision.Joan McCrea, who heads Joseph's People, a Philadelphia
area support group for the unemployed, said workers should think carefully
about whether to sue for age discrimination.
"You have to be very sure you are going to win enough money to
support you from now until the end of time," McCrea said.
"Because even if you win, your name will be out in the public domain.
Any industry is a small world with people talking from one business lunch
to another. By filing a suit, you may have eliminated 25 to 30 potential
contacts."
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