Ted is your 59-year-old site foreman. Over the last several years, Ted has developed chronic arthritis in his knees and hips, which is made worse by the prolonged hours he spends driving and getting in and out of his truck. John, your 31-year-old dispatcher, takes great joy in teasing Ted, referring to him as “Gramps” or “Old Man” or “Old Fart” and sometimes “Gimpy”. Ted usually just smiles and moves on.
Ted can sue you. He’s a victim of age and disability discrimination. Worse, because John would probably be viewed as a supervisor because of his dispatch duties, your company is automatically liable if Ted sues you. Because Ted ruefully smiles and moves on when teased by John, he would have difficulty proving that John’s comments created an intolerable work environment. On the other hand, if you later terminate Ted for performance or absence-related issues, he may seek revenge by bringing a claim of age or disability discrimination.
The Baby Boomer generation is gradually aging out. Remember that this generation of workers was generally very hardworking and loyal. Because of the recent economic downturn, however, many do not have enough money for retirement. As a result, bringing a discrimination lawsuit sometimes looks like winning a jackpot.
John’s comments reflect examples of direct discrimination. Indirect discrimination can also occur, usually because management wants to re-energize the work force, reduce salary and benefit costs, or advance the career of promising employees. The result is that management “gets rid of” the older workers on the payroll. An even more subtle form of discrimination occurs when the older workers are held to higher standards than other workers, sometimes deliberately to force them to fail.
Ted’s chronic arthritis also creates a risk for you. The Americans with Disabilities Act protects individuals who, with or without a reasonable accommodation, can perform the essential functions of the job. This law also protects persons who are perceived to be disabled. Thus, John’s reference to Ted as “Gimpy” creates liability for you because John (your agent) perceives Ted to be disabled. Again, should you ever decide to terminate Ted, he can bring a claim of disability discrimination against you.
Anytime you or your managers perceive or suspect that someone has an injury or illness affecting their performance, you need to engage in the “reasonable accommodation” dialogue. First, make sure that you have written down the essential functions of the job, and be specific. An essential function is one that must be performed, is not optional, and is not one that could be performed instead by someone else. In this case, Ted needs to drive to various jobsites, so he needs to get in and out of his truck regularly and spend a good portion of his day driving. There’s no problem with asking Ted a direct question: Are you able to perform the essential functions of your job? If Ted’s answer is anything short of “yes” then you should ask Ted: Is there something we could do to help you perform the essential functions of your job? The burden is then on Ted to propose an accommodation. Once Ted suggests an accommodation, the burden shifts to you to determine whether or not that accommodation is reasonable or creates an undue burden on your business. For example, if Ted wants to use a car rather than a truck because it’s easier to get in and out of, and you have one available, then it probably would be a reasonable accommodation to let him use a car instead of a truck. In contrast, if Ted proposes that he be chauffeured to each jobsite, that is almost certainly an unreasonable accommodation. The bottom line is that you must assess each possible accommodation, and most important, document the dialog with Ted, his proposals, your assessments and the actual determination.
It should be obvious that if John’s remarks come to your attention, you will need to discipline John and direct that he not engage in such remarks at all. It is also prudent to remind all managers and supervisors that they are prohibited from engaging in this kind of behavior.
Following these steps won’t guarantee that you don’t get sued for age or disability discrimination by an older worker, but it will reduce the possibility and liability.
David C. Whitlock has over 25 years experience in business immigration, compliance, employment counseling and training. He is an attorney with Miller Martin, PLLC and can be reached at (404) 962-6102 or at firstname.lastname@example.org.