Q&A Roundup: Age Discrimination, Terminations, and More

We answer questions about age discrimination, terminating remote employees, and when someone’s ability changes after an off-the-job injury.

What is age discrimination?

Age discrimination (sometimes called ageism) means treating people less favorably because of their age. In the workplace, this commonly happens when an employer favors a younger worker over an older one. In some cases, age discrimination is unlawful.

If your organization has 20 or more employees (for 20 or more weeks in the current or previous year), then it is covered by the federal Age Discrimination in Employment Act (ADEA). Enacted in 1967, this law forbids age discrimination against people who are 40 or older. The ADEA requires covered employers to avoid and prevent age discrimination in all aspects of employment. This includes, but is not limited to, hiring, work assignments, wages, bonuses, promotions, discipline, and termination. Many states have age discrimination laws that kick in at a lower employee count and some even protect younger workers.

You don’t have to intend to discriminate to violate the ADEA. You might even have good intentions. Let’s say that you recently hired an employee in their late 60s and their start date is tomorrow. But before their first day, you learn about COVID exposure in your workplace. Fearing that the new employee may be more at risk because of their age, you push back their start date. Doing this would be a clear case of age discrimination. The proper course of action would be to reach out to the new employee and talk to them. Let them know about the risks and see what they’d like to do given the situation.

The best way to avoid discrimination is to base employment decisions only on factors that are job related and irrespective of age.

Answered by Kyle Cupp

Is there anything special we should know before terminating a remote employee?

Terminations involving remote employees function much the same as those in a physical worksite. But there are some things to keep in mind: 

• If the employee works in a different state, you’ll need to follow that state’s laws regarding termination procedures, paperwork, and final paychecks. Look these up on the platform ahead of time. You don’t want to miss any deadlines.
• Coordinate with IT. They will remotely revoke the employee’s access to company systems immediately upon termination.
• Have a clear process in place for the employee to return any company-owned equipment. This includes computers, monitors, phone systems, etc. and plan to pay for shipping. Go over the process at the termination meeting.
• Don’t make deductions from the final paycheck because the employee hasn’t returned company property or has returned things damaged unless you’re sure it’s legal in the state where they work and that you’ve complied with any related requirements.
• As with most terminations, be sure to have paperwork in order. This includes documentation of behavior and performance issues, conversations you’ve had, disciplinary actions taken, and warnings to the employee about the consequences if they failed to improve. You will need this documentation if the employee challenges the termination.

Answered by Kim Alexander

We have an employee in a job that regularly requires lifting 50 pounds. But now they say that they can only regularly lift 25 because of an off-the-job injury. Can we terminate them?

Possibly, but proceed with caution. The Americans with Disabilities Act (ADA) applies in cases like this. The ADA requires employers that have fifteen or more employees to provide accommodations to employees to enable them to perform the essential functions of their job. The only exception would be if doing so would create an undue hardship or create a direct threat.

First, make sure that regularly lifting 50 pounds is actually an essential job function. Generally, an essential function of a job is a fundamental duty of the position. Assess whether the job can be done without regularly having to lift 50 pounds. If it can, then regularly lifting that weight isn’t considered an essential function. Therefore, you can’t terminate the employee because they are unable lift that amount. 

Second, and if regularly lifting 50 pounds is an essential function, you are required to engage in the interactive process with the employee to determine if a reasonable accommodation would enable them to perform that task. Note that providing an accommodation doesn’t necessarily mean that they must be able to personally lift 50 pounds. It could mean enabling them to move the 50 pounds from point A to point B without personally lifting it. For example, they might do so with the use of a device like a hand truck or dolly. Other potential accommodations include reassignment to an open position that the employee’s qualified for or, if the lifting limit is temporary, a leave of absence. 

If there’s no accommodation that would enable them to perform the essential function without causing a direct threat, or if the only effective accommodation would create an undue hardship for you, then you can move on to termination. However, undue hardship is a high bar to meet so consider this thoroughly before you decide. 

Answered by Kate McNamara

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