Can employers use age as a factor in making employment related decisions?

Generally, the answer is no.

The Age Discrimination in Employment Act of 1967 (ADEA) limits an employer’s use of age as a factor in employment related decisions.  Whether the ADEA applies to tribal employers is an open question as there is an argument it applies and there is an argument it does not apply.  As an exercise of the tribe’s sovereignty, tribes choose whether to follow the ADEA, create tribal law which meets the requirements of the ADEA or reject the federal law in favor of another option.  If tribes choose to follow the ADEA or use it as a model, an understanding of the new regulations is prudent.

The ADEA prohibits two types of discrimination against workers because of their older age with respect to any aspect of employment.  The first is called disparate treatment which is intentional discrimination against older workers.  Evidence of disparate treatment or intentional discrimination are statement like “Older workers cannot cut it.” The second type of prohibited age discrimination is called disparate impact which are practices that, appear to be neutral with regard to age, but have the effect of harming older workers more than younger workers. This second type of age discrimination can be more difficult to address because it is unintentional and therefore less obvious.

Sometimes there are neutral employer policies which unintentionally limit opportunities for older workers but may be lawful.  The federal regulator asserts that those policies are lawful if (Watch Out Here Comes Another HR Acronym) the practice is based on a Reasonable Factor Other than Age (RFOA).  An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose with an assessment of its potential harm to older workers.

Example:

Your tribe requires its first responders to pass a physical fitness test to be sure that the officers are physically able to lift patients onto a stretcher.  The legal problem is the test may exclude older workers more than younger workers.

The tribe’s requirement of the potentially limiting physical fitness test will likely be a RFOA if the tribe reasonably believes the test measured the strength appropriate to the job, and if the tribe did not know (or should not have known) of steps that it could have taken to reduce harm to older workers without unduly burdening the tribe.

In assessing reasonableness, the rule asks employers five questions:

1. What is the business purpose of the policy?

2. Is there a connection between the reality of the job and the policy?

3. Is the policy applied fairly?

4. Have you considered the policy’s impact on older workers?

5. If there is an impact on older workers, how much?

These are good questions to ask about numerous employer policies to protect yourself from allegations of age discrimination.

Recommendation:  Tribal employers strive to respect elders in the community.  A strong policy declaring that age is not a factor in hiring, job assignment and firing is necessary to achieve that goal.  Additionally, scrutiny of our policies and practices to identify where older workers are unintentionally limited without good reason will reduce the risk of a lawsuit and show the respect our elders deserve.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.