damnedif

If we are being honest we must admit that many of us will eventually get “too old” to do our jobs. This won’t happen to everyone. I have had cases against lawyers in their 90’s who were quite capable. I imagine that Jack LaLanne would have been a fine lifeguard or firefighter even in his 80’s. But most of us could not do those jobs in our 80’s.

Don’t take this post the wrong way; I’m strongly against age discrimination. Although I usually work for employers, I’ve successfully represented older workers who have been real victims of age discrimination. It’s ugly. And the resulting emotional and economic harm to an older worker can be devastating. While racial discrimination is often subtle and covert, age discrimination can be blatant and overt.

This post is aimed at the very real situation of a good employer having an elderly worker who can no longer perform all of the job duties. In this economy with people unable to retire, and because baby boomers are aging, this is a situation that frequently repeats itself. Take this hypothetical “damned if you do; damned if you don’t” situation, which is a mixture of real cases I’ve worked on. Say an employer has a much older worker; elderly, in fact. Far from wanting to discriminate, the company feels great affection for the employee, and has kept him much longer than his performance warrants. Let’s say that the public’s or the client’s safety depends on the employee performing his job duties.

What is the employer to do? By letting the employee slide for years, the employer is in a weak position because it has no record of poor performance. If the employer fires the employee, it exposes itself to an age discrimination claim. If the employer does not fire the employee, clients may be dissatisfied, or someone could be injured. Damned if you do; damned if you don’t. There may also be physical issues that make the employee qualified as disabled under state and federal law, requiring that you provide reasonable accommodations before termination.

There’s no magic bullet to this situation, but if it is a safety issue, you have to err on the side of safety. But it is clear that employers must rely on objective criteria. Well-drafted and honest job descriptions, which are enforced for all employees equally, are your first line of defense. Performance evaluations are your second line of defense. If you routinely evaluate, or even test, all of your employees in an equal, objective, unbiased fashion, and record the evaluations, you will be in a better position (You have to be careful that the evaluations or tests themselves are not biased, which could lead to liability). Also, you should have objective and equal responses to the evaluations/testing. You cannot let some employees slide, because you have then set a precedent that will allow an employee to show bias if you enforce your standards against only some of your employees. Document everything when it happens. Employment lawyers have a saying, “if it’s not in writing, it didn’t happen.”

This will cost you time and money, I get that. But don’t look at it as a waste of time. In addition to helping you avoid liability, won’t it also help you to serve your customers? Won’t it reinforce to your workers that the job description is important and that you take it seriously? Won’t it help you to revise your job descriptions if they are not accurate? Won’t you discover where you need more training? Won’t it help you get valuable feedback from your employees? Won’t you weed out underperforming workers and strengthen your business? Only you can answer these questions, but I’d be surprised if you said “no” to all of them. Maybe this isn’t feasible for every company and every position, but if you put your mind to it, you should be able to come up with some objective ways to evaluate employees.

The other advice here is to be honest with your employees. Of course, don’t say “you’re too old” for the job. Don’t suggest that the employee retire. I said honest, not suicidal. In fact, age really isn’t the issue, in spite of what I wrote above. The issue is the individual’s performance. Some people can suffer early onset dementia at age 60. Some people have their wits about them in their 90’s.

Make it about their performance. Don’t try to soften the blow and tell the employee that you’re eliminating the position when you are not. Don’t tell employees that you are moving in a new direction, or seeking some “new blood,” which is code for hiring younger workers. Just be factual and rely on performance issues. It will still hurt the employee, and they may not want to accept that they cannot perform. But deep down, they will know that you are right. I think it is easier to accept that we all get older and lose some of our abilities than to accept that your employer rejected you just because you are older. If you make an employee feel the latter, you may well buy yourself an expensive lawsuit.

If you have any questions on how to deal with an underperforming worker, call me at 617.338.7000.

By Adam P. Whitney