Age Discrimination Archives

“My raise was tiny. Illegal discrimination, or legal cost-cutting?”

Published on August 23rd, 2013 by Alan L Sklover

Question: Hello. I have been with my present employer for over 28 years. I am now 50. I receive great performance evaluations, but this year’s raise was only one half of one percent. To make matters worse, half of it will not be counted for retirement purposes. 

I feel like it is age discrimination and they are trying to starve me out. Do I have a case?

Name Withheld
Leland, Missouri 

Answer: Dear Blog Visitor: Hello to you, as well. I chose to publish my answer to your question because so many blog visitors are asking similar questions lately. Here is my best answer.   

1. For there to be illegal “discrimination,” there must be an illegal “motivation” in your employer’s mind and heart. It is not illegal discrimination for an older person to receive a small raise, or to be demoted, or even to be laid off. Those unfortunate experiences can happen to anyone, at any age. However, if your boss said to himself or herself, “I am going to give him a small raise because I don’t like older people,” or “Deep in my heart, I know older people get sick more often, so I don’t think they are worth as much as younger people,” then it would be illegal discrimination, because of the discriminatory motivation for the act.  

2. How can you tell if you have a “case” of illegal discrimination? Since illegal discrimination is a matter of what is in the “mind” and “heart” of the employer, how can you see what is in an employer’s mind and heart? Actually, you cannot do that, even if you looked real hard in their ears, down their throats, or up their noses. However, you can figure out what is in employers’ minds and hearts by listening to what they say and watching what they do, because what they say and what they do is a reflection of what they think and feel.  

Let’s start with (a) what your employer says: if your employer goes around calling people in their 50’s and 60’s “old geezers,” or other negative things, then he or she probably does not view older workers with respect, and does not see them as valuable as they view younger employees. Likewise, if your employer keeps saying to older employees “You should not need much money, as your kids are all grown,” chances are the employer had age in his or her mind when deciding how much to give you this year as your raise. 

Now let’s look at (b) what your employer does. Most importantly, did older employees all receive lower raises than younger employees? Have more of the older employees been laid off than younger employees?  Have more of the older employees been denied promotions that were given to less experienced, and younger, employees? These acts would tend to paint a pretty strong pattern of different treatment depending on the ages of the employees, and thus indicated age was in the mind and heart of the employer when it decided on the small raise.  

3. If you are paid more than most of your younger colleagues, it is possible that a very small raise was given to you in order to urge you to resign, or get you angry enough to quit. This sort of seeming “discrimination” – where the employer targets those who are higher paid, and it is a fact that older employees are often higher paid – is a source of great debate among many people, including employees, employers, lawyers and Courts. While lowering overall costs is an entirely appropriate business objective, if doing so falls mostly on the shoulders of older employees, could it be “discrimination in disguise?” Courts are somewhat in disagreement over how to treat these circumstances, but are increasingly looking at each individual, and making a determination – illegal discrimination or legal cost-cutting – on a case-by-case basis, with a watchful eye toward “evident intent.” That is, they look at the other things that the employer is “saying” and “doing” to reach a decision on this issue of possible discriminatory intent. 

4. I think it is quite likely that you are experiencing what so many other people – young, middle aged and old – are experiencing, worldwide: lowered compensation for the same effort and performance. Not only am I reading about it, I am hearing about this trend on a daily basis from both clients and blog visitors. They are not only receiving lowered benefits, lowered bonuses, lowered commission payments, but even lowered salaries. This is on every “level,” from entry level to “C-Suite.” It is to the point that even some people are working for free – the “interns” – in most cases in violation of minimum wage laws.  

It seems like a matter of “supply and demand,” that is, few jobs and a lot people looking for them. While employers can’t sell more, and can’t raise their prices, they can engage in – and are – lowering compensation. In and of itself, it is not illegal. Demoralizing? Yes. Upsetting? Yes.

A real challenge? You betcha, as landlords, mortgage companies and those who sell us the food we eat are not lowering their prices at this time. Far from it. 

5. The one proven way to combat “income deflation” is to learn how to “navigate and negotiate” at work, which is what we teach in this blog. Even in this atmosphere of “income deflation,” some people are moving forward, climbing the income ladder, and achieving greater incomes and enhanced job security. It is a matter of pursuing and practicing our 7-step discipline, what we refer to as the SkloverMethod™ of workplace navigation and negotiation, which is fully explained more throughout our blogsite. As we often say, “Make yourself valuable, and negotiate that value, and all will be well.”   

I hope this has been helpful. Thanks for writing in.   

My Best,
Al Sklover

P.S.: Want to learn more of this “good stuff” regularly? You can Receive Each of Our Blog Posts Automatically, Free, By Email if you just [click here.] And we promise: we never sell, lease or let anyone see our subscriber list. Never, ever.  

Repairing the World –
One Empowered and Productive Employee at a Time™

© 2013 Alan L. Sklover, All Rights Reserved.

“Is it discrimination when a boss favors an employee he is dating?”

Published on May 25th, 2011 by Alan L Sklover

Question: My colleague at work is having a sexual relationship with our boss. I know that is the case because I have been at her apartment and have seen them together. I expressed my concern to my friend, but nothing changed. Then I took it on myself to talk to our boss, telling him how I feel and how their relationship was hurting morale at work.

Shortly after that, I took a cut in pay, and was assigned a position I had no experience for. Shortly after that, my boss hired his brother-in-law to take over my new position. Considering how hard my other colleagues and I work, and how unfair this has become, I want to know if what I am experiencing is discrimination. 

A Citizen
Pleasanton, California

Answer: Dear Citizen:    

Though I have not received too many letters like yours, I am convinced that many people are in your exact situation. I think you and many others will find my answer surprising.

1. It is not illegal discrimination for a boss to treat someone better based on the relationship with the two of them, even if that relationship is a sexual one. I am certain many people will find that difficult to believe, but it is true. It is illegal discrimination to tell someone “You must have sex with me to keep your job.” It is also illegal discrimination to say to someone “If you don’t have sex with me, you will lose your job.” It is also illegal discrimination for a boss to hire or fire a person based on that person’s gender – being male or female. But it is not illegal to treat someone better than you treat others because (a) you like them, (b) they are a friend, (c) they are a relative, (d) you are in love with them, or (e) they have sex with you.
 
2. That is because Courts can’t get involved in every work decision, or personal relation. Many, many courts have said, in effect, that “People will always like or love some people more than they like or love others; we will never be able to stop that. And some of those people will be friends, some will be relatives, and some will be sex partners. And the courts cannot get involved in every situation to see if a decision at work is based on this.” If someone owns a company, they may decide to make their son – even if he is lazy, stupid and dishonest – the company President, out of parental love. If someone owns a company, they may decide to fire the best employee in the company, due to a personal dislike. Such conduct is not illegal, and the Courts have said so, many times. It is legal essentially because it is human. 

3. It is very possible that what you describe violates your employer’s Company Policies. While the conduct you describe is not illegal, it might violate your employer’s Company Policies. You see, many companies think it will hurt their interests, by damaging employee morale, to permit bosses to act based on who they sleep with, and who is their brother-in-law. And many, many companies have a policy against retaliation against an employee who objects to, or reports, a violation of Company policy. From your letter, I cannot tell if you work in a small company, or a large one; it’s the larger ones that more often have written policies on these things.

4. If your employer does have policies against such dating, or against retaliation, file a written complaint with Human Resources or the  Company’s CEO. If you work for a larger company that has such anti-dating and anti-retaliation policies, you should file a written complaint describing what happened to you. Notice I use the word “written.” That is because what you say can be forgotten, lied about, accidentally misconstrued or even deliberately mischaracterized, but “an email is forever.”€Don’t hesitate; from my experience you may soon lose your job altogether.

If you would like to obtain a Model Memo Objecting to Retaliation on the Job, simply [click here].

Sorry to hear of your terrible situation. I hope you will now stand up for yourself for what is happening to you, or, perhaps find a new employer who will reward hard work, honesty and loyalty more than personal feelings.

Hope this is helpful. If so, please tell others you’ve found a valuable blogsite. And, if you can, please use the services of our advertisers – they keep us “On the Air.”

Best,
Al Sklover 

To obtain a Model Complaint of Age Discrimination to HR or Management, for your adaptation to your facts and situation, just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2011 Alan L. Sklover, All Rights Reserved.

“Is hiring by ‘experience level’ illegal age discrimination?”

Published on February 8th, 2011 by Alan L Sklover

Question: How is it that law firms advertise open positions as being open only for lawyers with a very narrow range of experience, for example, 3 – 5 years?

I think this generally means people over a certain age – say, 30 – need not apply.

Recruiters will routinely tell candidates of their client-law firm’s refusal to even interview candidates with more than the desired amount of experience.

Isn’t this illegal age discrimination?

         Mitch 
         New York, New York
     

Answer: Dear Mitch: Your question is especially interesting to me because I am one of those law firm-employers who advertise job openings the way you describe. I don’t think I intend to discriminate, but then again, perhaps I discriminate, nonetheless. These are my best answers: 

a. “Experience,” by itself, is usually considered a non-discriminatory hiring criteria. Usually, “experience level” is considered a valid, business-sense, criteria for hiring. To be sure, it could also mean “no older than.” I think using “range of experience” is a custom, especially in legal hiring, that has been around so long we are all used to it. But, then again, that does not make it non-discriminatory.
 
b. I don’t think “experience level” necessarily means “age level.” As for one example, I was 32 when I graduated law school. According to your letter, anyone over 30 can’t be a first year lawyer, but sure enough I was. And I went to law school with a good number of people older than I was. But, then again, those my age and older were the exceptions, not the rule.

c. I think “experience level” is primarily intended to ensure a minimum of functional ability. A 3-5 year attorney usually “knows the ropes,” but not “the fine points.” I would expect to have to train a 3-5 year attorney, but not extensively. But, then again, why limit myself to a “partially trained” attorney, and not hire a “seasoned” one? 

d. I think “experience” level is secondarily intended to set an expectation of compensation. When we advertise for a 3-5 year attorney, we usually mean “probably willing to work for less than a far more experienced attorney.” But, then again, that presumes that a more experienced attorney would not be willing to accept a lower salary. Why not try to get a valuable senior attorney at a low price?

e. Bottom line, Mitch: You’re probably right, at least partly. Try as I might, I can’t completely avoid the real possibility that, even when I hire, and use “3 – 5 years experience,” I don’t mean “about 30 years old.” I can tell you that is what I recently advertised, and ended up hiring a 10-year veteran who is about 40 years old. At least I am open to hiring attorneys of all ages. 

Hope this has been in some degree helpful. I must admit, such language as “3 – 5 years experience” has at the least some discriminatory overtones, and probably impact. Thanks for bringing it to my – and our readers’ – attention. We all have some biases in us; hopefully, now that we are aware of them, we’ll correct our language in “help wanted” ads, and in other contexts, as well. You have educated us.

Thanks, again, for writing in. 

          Best, Al Sklover   

To obtain a Model Complaint of Age Discrimination to HR or Management, for your adaptation to your facts and situation, just [click here.]

© 2011 Alan L. Sklover, All Rights Reserved.

“Is a 17-year-old protected by the age discrimination laws, or a company’s age-related policies?”

Published on October 14th, 2010 by Alan L Sklover

Question: Hello, Alan! Well, I am 17 years old and applied for a nursing home job as an assistant. I was interviewed and hired.

Then, nine days later I was laid off. I was told that the company started a new policy that says employees have to be 18 years old.

I am unsure if that is illegal discrimination. Also, since I was hired under the old policy, should I be protected from the new policy?

I was hoping you would know what I could do about it. 

         Mee La
         St. Paul, Minnesota

Answer: Hello, Mee! Your question is a very good one, and especially for someone of your age. It shows me that you are thinking in a wise, mature way. That is very good.

First, is what happened to you illegal? People are protected against age discrimination at work by two laws: federal law and state law. Unfortunately, the federal law against age discrimination at work, called the Age Discrimination in Employment Act, or “ADEA,” only protects people who are 40 years of age or older. Also unfortunately, the Minnesota Human Rights Act, or “MHRA,” only protects people from age discrimination at work who are 18 years of age or more, while you are 17.

Second, companies are free to change their employment policies at any time they wish to do so, in their sole judgment. Unless you have a contract that says they cannot do so, an employer can change, as examples, (a) their attendance policy to require earlier arrival, (b) their dress code to require more formal attire or uniforms, or (c) their payroll policy to pay employees on Fridays instead of Thursdays. If you don’t have a contract that forbids such changes from happening to you, you need to comply with these new employer policies, or others they may institute.

Of course, you can either ask to be exempted from the new policy, or you can find a new job elsewhere. But you do not have a right to be “vested” in a former policy of this type.

Sorry for the unwelcome news. Hope you’ll be able to find something else soon. At your age I am sure it is tough to find work right now. If you just keep trying, I’m confident you will succeed.

By the way, I used to work on the West Side of St. Paul near Our Lady of Guadalupe Church. Good luck with the coming winter. I always tell my friends “You don’t know what cold really means until you spend a winter in Minnesota!”

If this was helpful, please tell your friends about us. We love helping people. 

          Best, Al Sklover

To obtain a Model Complaint of Age Discrimination to HR or Management, for your adaptation to your facts and situation, just [click here.]

© 2010 Alan L. Sklover, All Rights Reserved.

“Do you think that employers are targeting older workers for layoffs and Performance Improvement Plans?”

Published on April 17th, 2010 by Alan L Sklover

Question: Hi, Alan. I have been following your internet site and also the unemployment news and I notice a disturbing trend.

I am seeing that 95% of the people put on Performance Improvement Plans (“PIP’s”) and those that are being forced to leave their jobs, those that attend job club networking meetings, and those who can’t get back into the workforce, are those in their mid-to-late 40’s and 50’s.

It almost seems like an orchestrated effort to get this age group out of the workforce deliberately to make room for “younger workers.” Baby boomers are being “weeded out” and kept out.

Why is a bad economy an excuse for breaking age discrimination laws?

 Rita 
 Palm Harbor, Florida

Answer: Rita, I understand your perspective, share you concerns, and have also seen older employees struggle to remain employed. That being said, I don’t think it is age discrimination that is primarily responsible for what you are seeing.

I say this because I see the same degree of struggle for gainful employment – perhaps worse – among those in their 20’s, who are having a simply terrible time starting off in the world of employment. While older workers can’t seem to stay in the game, the youngest workers can’t get into it.

The root cause of the problem, I believe, is very short-term thinking by our largest employers. As to older employees – who have the most valuable experience and judgment – employers don’t want to pay the extra salary and benefits they believe older workers demand. As to the youngest workers – who don’t yet have any really saleable skills – employers do not want to invest in their promise for the future, but instead want to make as much money as they can . . . today.

In this very tight job market, that leaves those in between – from perhaps 28 to 44 – with the best chance for keeping their jobs. But they, too, will inevitably suffer from what former astronaut and U.S. Senator John Glenn used to say was the biggest failure of modern medicine: there is no cure for the common birthday. One day, sooner than they imagine, they will be older, too. This short-term thinking does not bode well for our society.  

In the largest sense, I believe this is a reflection of the greatest problem we face as a society: the triumph of “commercial values” over “human values,” in which all too many of our leaders – business, political, civic, social, and others – believe that the assembly of as many dollars as possible is the ultimate goal of mankind. How sadly mistaken they are.

What to do? There is no easy solution, but to plug, plug, and plug ahead some more, with an inner strength and a confidence based on your value to others. Though my hair is gray, my smile is wrinkled, and my eyes have grown weaker, I maintain my bedrock belief that you simply cannot keep a good and determined man or woman down, no matter what their chronological age, or any other external characteristic. In fact, I believe it now more than ever.

That is how I see it. Hope that makes some sense to you. Thanks for being a loyal reader.  

         Best, Al Sklover

To obtain a Model Complaint of Age Discrimination to HR or Management, for your adaptation to your facts and situation, just [click here.]

 © 2010 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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