Those of us who practice in the field of employment law have been faced with the realization that, although our work-life expectancy has increased, the age at which we are considered expendable and no longer capable of making a meaningful contribution has been systematically reduced. The inevitable result is that older workers are "forced out" of their positions, well before their work-life expectancy is achieved.
Years ago it was not unusual for people to work until they, themselves, felt they could no longer effectively perform. Now, performance often plays no role when an employee is asked to leave the workplace. Instead, age becomes the determining factor. Regrettably, some companies have actually set ages at which employees face mandatory retirement, although many employees looked forward to remaining at their jobs for a longer period. Although they are physically and emotionally capable of a longer work-life, conditions in the workplace frequently force employees, when they reach their 50s, out of positions they are still fully capable of fulfilling and mastering. It makes no sense, given the experience and energy that goes to waste when this occurs.
We fully recognize, certainly at this time, the strong burdens placed upon management to reduce costs. It is a fact that workers of age frequently earn higher compensation than younger employees. Dispensing with older workers, with higher salaries, rather than younger workers, might appear to represent greater savings for the employer. Therefore, this can be an enticing reason for management to force older workers out if the employer is faced with a need to cut costs. However, that can be a hollow choice, given the fact that we often find the younger replacements frequently in need of more supervision, a period of adjustment and other unknowable pitfalls that arise when experienced workers are removed from their positions. There could well be greater employment costs and frequently a failure to produce the expected and required results. We believe that is why the operative laws against age discrimination provide that "age need not be the only reason for the termination, but only one of the reasons." Ostrowski v. Atlantic Mutual Insurance, 968 F.2d 171, 180 (2d Cir. 1992).
We recognize that "employment is at will." We must also recognize, however, that termination that has a discriminatory basis clearly trumps the concept of employment at will. And so the battle begins. Was the termination based upon a reason that has been judicially deemed appropriate, or did age play some role in the termination?
In other areas of employment discrimination, it is inconceivable that we could find any factors that could reasonably justify, or explain away, an act of employment discrimination. No one can reasonably explain, or justify, how a man could do a job, but not a woman. Or how someone in a minority group could not do the job of a non-minority employee. But with respect to age discrimination, we find that there are those in the workplace who argue, despite the laws that provide otherwise, that the employer should be permitted to consider age in its determination as to who should be hired and who should be fired. They argue that the workplace belongs to the employer and that age should not be considered a protected class. Some may even assert that market forces will protect older people and they do not require the protection of age discrimination laws. We say otherwise.
We believe age discrimination is an increasing epidemic. It has escalated to the point that age discrimination now has a pervasive effect in the workplace. This tidal wave of age discrimination must be addressed in vigorous and meaningful fashion.