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Proving Discrimination in the Workplace

“Although many women feel they have blossomed in middle or old age, there are some people in our society who believe that a woman’s value declines as she ages. Some employers require women workers to meet youthfulness or physical attractiveness standards. If these requirements exclude women 40 or over or are not equally applied to men, they may be illegal” (Williams). Under the Age Discrimination in Employment Act of 1967, employers who have at least 20 workers are not allowed to Recruit, or ask an employment agency to send, only younger applicants; withhold training opportunities from older workers; fire or force a worker to retire because they are older (some occupations are exempt); or allow younger workers benefits such as flex time that are not given to older workers. If an employee believes they have been discriminated against on the job or while applying for a job on the basis of race, color, sex, religion, national origin, age, or disability, they may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

If the employee feels that they have been discriminated against due to age they must show that they are a member of a protected class, show adverse employment action, show that he or she was qualified for the position, and show that there was dissimilar treatment (Bennett-Alexander 414). In Parrish v. Immanuel Medical Center, Mary Parrish, “a 66-year old employee resigned after being summarily transferred to a new position and after her supervisor made age-based remarks. She sued for age discrimination” (418). Parrish is over 40, which satisfied the requirement that she is a member of a protected class. The adverse employment action, which leads Parrish to resign, was assigning her to a new position without giving her a choice. Her employer claimed that she was transferred because of her inefficiencies. Parrish was able to show that she was qualified for the position. She was capable of performing the required duties and had received above-average ratings on her yearly performance evaluations. The jury found for Parrish. Immanuel Medical Center appealed and the judgment was upheld.

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An employee can bring a claim of disparate treatment or disparate impact against an employer. A claim of disparate treatment by an employee would be a claim that the employee is treated differently than other employees because of her age. A claim of disparate impact would be a claim by an applicant who claimed that she was not hired because of her age. Statistical evidence, allowed by courts to prove discrimination on the basis of age, is more useful for disparate impact cases than for disparate treatment cases. “Where statistics are used to prove discriminatory effect, the Supreme Court . . . has considered percentage comparisons and standard deviation analyses of those comparisons. ‘As a general rule, . . . if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the [selection process] is random would be suspect.’ (434).

I am in the process of hiring a Department Assistant for the Medical Department at National Health Plans. I interviewed eight individuals. (Three were through a temp agency and five were from responses to an ad we ran in the paper.) In addition to the position qualifications, I am looking for someone who is capable and able to handle various situations with maturity. To put it simply, my boss instructed me to hire a “stuffy old lady.” My first choice was one of the temps; however, the maturity she evidenced in the interview did not hold up when she received the guidelines for dress. She came in as expected and met with HR. HR called me a few minutes later and asked me if I had a second choice. She was uncomfortable with our dres’ code and left. My next two most qualified candidates were from ad responses. One is a lady who is 60 years old (she told us that in the second interview.) She seems very qualified; however, her typing speed just barely meets the minimum requirements. I noticed in the second interview that her hands were slightly blue. The other candidate is probably in her late 20s or early 30s. She is also very qualified; however, she lacks experience in a medical setting.

Our minimum requirements for the position of Department Assistant are 1-2 years of clerical experience and typing speed of 40 WPM. Most of the applicants I look at probably have at least five years of experience and type between 40 and 80 WPM. I look for a fast typist to take minutes at meetings. Taking a laptop and taking notes saves time later of listening to the tape of the meeting. If I were to hire the younger candidate, there could be a possibility that the 60-year-old would claim discrimination. She is definitely a member of a protected class because of her gender and age. If I didn’t hire her because of her age and typing speed she could claim she suffered from an adverse employment decision. She could claim that she was more qualified than the other applicant because of her years of experience including some medical experience and that the position was given to a younger less-qualified individual.

As an employer, we could not say the age requirement was a BFOQ of the position. We could say that the hiring decision was based on some reasonable factor other than age and another employee was more qualified for the position. We could also back up our claims with statistical evidence. Our organization is 75-80% women and about 40% of those are over 40. “Ability, not age, should determine an individual’s qualifications for getting and keeping a job” (Recognize). Employers must have policies and procedures in place to ensure that they do not allow discrimination in any form in their workplace. Older workers can be a valuable addition to a workplace. In addition to their skills and experience, they can bring a maturity that comes with years of experience.

Works Cited

  • Bennett-Alexander, Dawn D; Hartman, Laura P. Employment Law for Business. Boston: Irwin McGraw-Hill, 2001.
  • “Recognize Age Discrimination in Employment.” AARP 29 April 2001. <http://www.aarp.org/ working_options/agediscrim/home.html> Williams, Michael. “Know Your Rights.” Created 23 August 1996. Last Edited 8 April 1998. Age Discrimination 29 April 2001.
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  • “Mandatory Retirement.” AARP 29 April 2001. <http://www.aarp.org/ontheissues/ issuemandret.html> “Men Discriminated Against in the Workplace.” Worklife Report 13.2 March 2001: 7.
  • “Policies and Procedures for Human Resource Management / Procedure for Processing Complaints of Discrimination.” Human Resources, Rensselaer 29 April 2001.
  • <http://www.rpi.edu/dept/hr/policies/pmcompla.htm> Savides, Steven. “Before You Interview: Hiring has Taboos, Too.” Christian Science Monitor 93.98 16 April 2001: 14.
  • “Welcome to Equal Opportunity News (EON.)” EON’s Newsletter 29 April 2001. <http://www.equalopportunitynews.com/eonnews2.htm> “Workplace Issues.” Federal Times 37.6 12 March 2001: 13.
  • Wilson, Katherine K. “The Disparate Classification of Gender and Sexual Orientation in American Psychiatry.” 29 April 2001.
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