AGE DISCRIMINATION?!

Ethel

Due to restructuring, one of two identical jobs will be eliminated, which means that we will terminate one of the two employees. One employee is past 65 and one is late twenties. In order to help us make the best decision, we would like to know if the older employee intends to keep working. Does anyone have suggestions as to how this can be broached without giving the appearance of age discrimination? I REALLY need help on this one.

gillian2

First contact an attorney. How this goes over depends on what the employee is like and we don't know that. If the employee is likely to go over the edge when you ask the question, he or she will suspect bad motive on your part in every step afterward. You need to first think through the requirements of the job, the relative qualifications of the two employees and why you want to lay off the 65 year old vs. the twenty year old. If there is any age motive you might be dead in a challenge and if the 65 year old is a good employee, age motive might be implied because of the absence of any other reason. Saving money may be a legitimate reason, if there are no pitfalls in the rest of your analysis, in your state, but certainly not in mine, California.

Ethel

Sorry, wasn't clear enough. We are leaning toward keeping the over 65 because she has been with us the longest (25 yrs vs 3 for younger). However, we do not want to terminate a fully trained person and have the over 65 employee work a couple of months more and then quit. That leaves us with zero trained employees for the job. Regarding qualifications, the younger employee is more qualified because of computer skills, but because the older employee is such a long time employee, we would be willing to train her on computer.

mwild31

I'm sorry, I hardly wanted to touch this one because I don't have a lot of experience in this area, but I couldn't help but respond. Be careful! People are working longer and longer - and 62 today, is not the stereo-type of the past - old, past their prime, ready for retirement, etc. 62, for a lot of people I know that age, is vibrant, funny and very wise. I would go back to the drawing board, wipe out the age factor, and identify what skills/qual's you need for the job, then evaluate where their job skills/qual's are and see how they match up. If it's been your company policy to follow seniority, then you have to here. If it's been your company policy that you train ee's to get their skills up to speed, then you do it here. I know it's tough to find good, skilled employees, but if you have to let go of the younger one in order to follow what's right, then you have to. Imagine if you were the 62 year old - what approach would you want your boss to take?

Ethel

Hey, I appreciate your touching it. The employee is over 65 and we do not have a history of seniority being the rule. We normally look at skills but if we do that then the person we are leaning toward keeping is outgunned. Bottom line, we want to keep over 65 employee, but not if her plans are to leave in 3 months. We are trying to come up with a non-threatening, subtle way to learn what her plans are. Surely someone has faced this before -- HELP.

cthr

>Hey, I appreciate your touching it. The employee is over 65 and we do
>not have a history of seniority being the rule. We normally look at
>skills but if we do that then the person we are leaning toward keeping
>is outgunned.

Are you saying that the younger person is better qualified for the position? If your past practice has been to keep the better skilled of the employees that is who you should keep. In the past have you laid off older workers instead of younger due to skill set? If that is the case, why is this one different. Remember anytime you start making exceptions, it usually comes back to bite you.

mamhradm

We recently went through a Reduction In Force.

Depending on how many positions are eliminated, your plan should give reasons for the reduction or elimination of the position(s).

Before the plan was finalized and rolled out - we informed our employees that for economic reasons there would be a restructuring and some positions would be eliminated.

We did not ask directly who would consider staying or going - but the employees have a way of coming to you and asking if their position is one being eliminated. When the RIF actually happens, they aren't surprised and may let you know in advance that they are ready to move on.

Will the remaining position be posted, so those two and others can bid on it or will the decision be determined by performance/skills, etc. through an internal process?

gillian2

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There is no good way to ask - back to contact your attorney if you really want to do that. Looking far ahead, to the worst outcome, your innocent asking, for all the right motives will be cast as your hope, if not intent, to lay off the older employee.

Ms_Shepard

Are you asking the younger person how long they might plan to stay with the company as well? The way I see it, an older employee is not going to jump to another job as quick as a younger person who may be looking to advance their career. If you kept the younger person, the chances that they would be gone in three months are as good or greater than the older person.

Ethel

Although the VP won't like it, I think "Don't Ask - Don't Tell" is appropriate here. If we go ahead and inquire, we will probably be living proof that "no good deed goes unpunished".

Don D

Ms_Shepherd has my thought exactly. Why ask the older one if you're not asking the younger one? What if you had a pregnant employee. Would you ask, "You aren't thinking about staying home with that baby are you? Certainly you would not. If you intend to casually ask everybody what their intentions are for the succeeding 12 months, start the RIF discussions by asking for volunteers to go to the house. Absent that, stay with a strict plan that will not point to the violation of anyone's rights, i.e. the older worker. Regardless of her plans/dreams to retire, that should not impact your decision. She may change such a plan a week after she lets you know its a plan. Sounds like a minefield to me. Go forward with your RIF. Either go by location, by department, or by position. And absent any performance issues, factors being relatively equal, within the selected group go by qualification for and time in the position being retained. No surprises that way and doubtful any challenges. Save the attorney fee.