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HR Compliance: Pattern and Practice in Age Discrimination Cases

Alan Alder

Alan Alder

HR compliance

HR complianceHuman resources managers have to manage compliance at all levels of an organization, including adherence to fair labor and employment practices. One way human resources departments get into trouble with compliance is when they are faced with age discrimination claims

With a workforce full of baby boomers in their 50s and 60s it is perhaps more important than ever for HR professionals to have a firm grasp of compliance with age discrimination laws so they can protect their companies from potential trouble from age discrimination claims. Compliance in the area is somewhat uncertain these days. One of the main reasons concerns pattern and practice as evidence for those seeking to sue employers for age discrimination.

Traditional claims require discriminatory intent

Traditional employment discrimination claims involve an employee or applicant alleging particularized discrimination. So, for example, an employee alleges that she was laid off because her supervisor wanted someone younger and less expensive. In such a case, a great deal would ride on the particular reason for the lay off – was the intent in laying off the employee to get rid of someone older in favor of someone younger?

Such cases can either involve a manager acting with bad intent or with the company engaging, as a matter of human resources, internal communications, and compliance policy, in acts with an intent to discriminate.

No intent necessary in pattern and practice compliance cases

However, in so-called “pattern and practice” cases the intent of the employer is not necessarily an issue. These cases will involve a class of employees or job applicants and such cases turn on whether there was a policy that negatively impacted older employees and/or applicants.HR compliance

An example will help make this difference clear:

Company X employs 1000 workers. It hires about 50 new employees a year. Its recruiting policy is to hire from three tracts: entry level, experienced, and executive. When recruiting for entry-level positions the company only has a presence on college campuses and requires, in its application, a currently existing relationship with a university.

On its face, there is no discriminatory intent or purposeful flouting of compliance on the part of the company or any of its supervisors charged with hiring decisions. Yet its impact is to deny older applicants for entry-level positions. The hiring policy will result in hiring entry level applicants in their 20s almost exclusively.

An example dealing with current employees is one where an employer gives larger raises, as policy, for those with eight years or less with the company than those employees with tenure greater than eight years.

HR professionals should be aware of any negative impact on older employees/applicants

HR compliance departments should be aware of issues like these that can open the company to costly lawsuits and the bad press that come from such suits. Companies that are trying to portray a youthful image or appeal to millennials can easily set up policies that impact older workers and applicants without having the specific intent to discriminate. Incentives seeking to retain newer employees can also have a discriminatory impact.

It’s a very prudent idea to regularly review your company’s hiring, retention, promotion, bonus, and even retirement policies for potential negative impact on older employees even when you are not aware of any actual discriminatory intent behind such policies.

Age discrimination claims are not just limited to the stereotypical example of a company trying to save on labor costs by getting rid of older workers with higher salaries and higher benefits costs. Compliance with age discrimination laws require companies and their HR teams to make sure that its policies and practices do not have a negative impact on older workers and potential employees.

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