DOWNSIZING MAY LEAD TO INCREASE IN AGE DISCRIMINATION CLAIMS

In the current economic climate, employers should be aware of the potential consequences of taking adverse employment action against older employees. When former employees have trouble finding the next job after being laid off or terminated, they may start investigating whether or not there are grounds for an employment discrimination claim. Age discrimination is just one of the types of discrimination that is prohibited under federal and state law.

Employees over the age of 40 are protected from discrimination under both the federal Age Discrimination in Employment Act of 1967 and Idaho's human rights statutes. Employees over 40 are protected from age discrimination in various aspects of the employment relationship, including the advertisement of positions, hiring, termination, promotions and benefits.

In order for an employee to prevail on an age discrimination claim, he or she must prove that age motivated the adverse employment action. As described by the Idaho Supreme Court, the employee's age must have "actually played a role in that process and had a determinative influence on the outcome." In other words, age must have been a motivating factor behind the adverse employment action.

An employee believing he or she was the victim of age discrimination must file an administrative complaint with the Idaho Human Rights Commission (IHRC) within one year of the alleged discrimination. An employee must file a complaint with the IHRC before filing a lawsuit in state or federal court against an employer.

Upon an employee's filing a complaint, the IHRC may try to resolve the dispute between the employee and the employer through informal action, such as meetings, letters, etc. If the matter is not resolved through the preliminary informal processes, the IHRC will conduct an investigation to determine whether or not there are reasonable grounds to believe that unlawful discrimination has occurred.
If the IHRC finds no reasonable grounds to believe that unlawful discrimination has occurred, the IHRC enters an order to that effect and the proceeding is dismissed. If, on the other hand, the IHRC does find reasonable grounds to believe unlawful discrimination has occurred, the IRHC first attempts to resolve the matter through informal means, such as mediation. If the matter is not resolved informally, the IHRC may dismiss its proceeding, enabling the employee to move forward with its claims in a lawsuit in state or federal court. In addition, the IHRC may determine to initiate its own legal proceedings against the employer.

On its website the IHRC notes that "down-sizing" is currently of particular concern to the IHRC. Many older employees are finding their positions eliminated as company's struggle to cut costs. A few years ago, an experienced employee who had been laid off may have had an easier time finding a new job at a different company. When an employee finds that new job, he or she is less likely to worry about the underlying reasons for the adverse employment action at the previous job. However, in the current economy many people are not finding new jobs, particularly the more highly compensated older employees.

Employers should be aware of the fact that employees over the age of 40 have heightened protection under the age discrimination laws. An employer with questions about whether or not adverse employment action against an older employee will result in a claim of age discrimination should contact their attorney for advice.