Age Discrimination: Even AARP Is Not Immune

by Michael Haberman on August 21, 2008 · 0 comments


AARP, the national association that advocates for older Americans, is being sued by an ex-employee, who claims she was discriminated against because of her age, so reports the New York Times. The woman, Bonita Brady, claims she lost her job in a reorganization and then was passed over 9 times for other positions, despite the fact that she had excellent performance reviews in the past. AARP has not responded to the claim.

There are several things that may be going in this case. But first, here is a primer on age discrimination. Age is covered by the Age Discrimination in Employment Act of 1967 and is administered by the EEOC. It has been amended by the Older Workers Benefit Protection Act and the Equal Employment Act of 1991. Basically the law protects workers over the age of 40 from discrimination in all aspects of employment. Employers have to make decisions about employees or candidates based upon factors other than age. If an employee is being terminated or laid off they can be asked to sign a letter waiving their rights to sue if: 1) they are given something of value in return (read severance here), 2) they are given 21 days in which to make the decision (45 days if it is a group layoff), 3) they are informed they have the right to consult an attorney, and 4) they have 7 days in which to rescind the agreement.

There are a couple of Supreme court cases that have major impact on age discrimination. The first was General Dynamics Land Systems, Inc. v. Cline in 2004 said that the law was meant to protect workers over the age of 40 from discrimination in favor of workers under the age of 40, not from workers over the age of 40 but of a different age. The case dealt with benefit favoritism for workers over 50 but not for workers ages 40-49. A couple more recent Supreme Court decisions allowed older workers to file disparate impact cases. As an example, any skills test requiring computer skills might have a disparate impact on older workers.

So in the AARP case we started with a few things may be going on. First, Ms. Brady may have been passed over several times, but if she was denied because AARP hired someone who was also over the age of 40 she may not have a case. She may not have had the skills they need to fill the position, despite the good performance reviews. Secondly, perhaps the decision-making here was based upon “nice” performance reviews rather than “accurate” performance reviews. It may be in reality that her boss(es) may have been wishy-washy in their evaluation of her performance and she was not really as good as they put down on paper. And then when it came down to having to make a decision on her to fill a spot they really did not think she was capable of doing it. So they passed her over. She got upset and filed a lawsuit claiming discrimination. Whether this is the case or not, it is a good reminder to be accurate in performance evaluation, because if you tell people they are good, when indeed they are not, when you let them go they are going to attribute it to discrimination in some form. After all, you have been telling them for years they are good employees.

Whatever the reason, pay attention to this one to develop. They may settle with her. She is only asking for $25,000 and the bad publicity may cost AARP more than that.
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{ 2 comments… read them below or add one }

talentedapps August 21, 2008 at 12:12 pm

I am sure you are right that they will settle but this is a tough one. I agree that there is a decent probability that

a) the individual was getting “nice” vs. “honest” performance reviews
b) the individual might have hit her Peter Principle level
c) the individual might have been excellent at her specific job with no compelling evidence of additoinal potential for a different job

Promotion is about both performance AND potential.

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Michael D. Haberman, SPHR August 21, 2008 at 1:37 pm

A good point about promotion being both performance and potential. Even if you were talented and a good performer in your previous positions that does not necessarily mean you are qualified to do the jobs that remain regardless of how good you were in your previous job.

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