Age and Other Post-Pandemic Discrimination Claims

The devastating loss of jobs and permanent business closures, which may not yet be over, are clearly the most significant but not the only bitter products of the Coronavirus pandemic affecting U.S. workplaces.

The devastating loss of jobs and permanent business closures, which may not yet be over, are clearly the most significant but not the only bitter products of the Coronavirus pandemic affecting U.S. workplaces. The widespread unemployment it has created, as well as cost-cutting measures taken by businesses to survive, could lead to a sharp rise in claims of employment discrimination in the near future. The possibility of such claims has likely been exacerbated by the recent national focus on social and racial injustice in our society in general. Any one of these unrelated circumstances could create the potential for claims of workforce discrimination on the basis of one or more of the several statuses protected under Title VII of the Civil Rights Act of 1964. Together they almost assure that such claims will arise in the days ahead.

Discrimination in a Recession

In 2019 the number of employee charges alleging workplace discrimination filed with the Equal Employment Opportunity Commission (EEOC) was the lowest in over 20 years. Following the 2009 “Great Recession,” 2010, 2011, and 2012 saw the highest number of discrimination charges filed in the prior 18 years, corresponding to the highest unemployment rates in recent years. The correlation between high unemployment and high numbers of discrimination charges suggests the number of discrimination charges will soon rise.

The jobs lost as the direct result of COVID-19 is unprecedented. Current estimates suggest up to 30% of restaurants in the country have closed or will close. Estimates also suggest that perhaps 25% of all retail operations will permanently shutter. Businesses that survived and those attempting to reopen have often done so with reduced staff. Job eliminations, consolidations, operational restructuring, and similar changes are likely to become permanent for many employers. The majority of today’s workforce falls within one or more protected categories under Title VII. While potential discrimination claims based upon race, gender, national origin, or disability are possible, perhaps the most potential lies in age discrimination claims under the Age Discrimination in Employment Act (ADEA). In some cases, a refusal to recall an older worker due to paternalistic concern over possible Coronavirus exposure may precipitate a claim. In addition, whether accurate or not, older workers are often viewed as less productive and more expensive than younger employees, and frequently assumed to be less able to adapt to or master changing workplace technology. They are therefore potentially the first casualties in a workforce reduction.

The impact of the extended unemployment and income loss, as well as the devastation of 401k retirement accounts as a result of COVID-19, will force many near-retirement employees to want to keep working. Knowing the difficulty of finding suitable employment at age 50 and older, they will desperately want to hang on to their pre-pandemic jobs. Therefore, if their jobs are eliminated, the potential for ageism claims is significant.

Discrimination at Work

In a recent study on “Ageism in the Workforce” by global specialist insurer Hiscox, it was noted that of 400 full-time U.S. workers over the age of 40 they surveyed, 67% responded that they planned to continue working after turning 66. The study also noted that workers age 55 and older will soon comprise at least 25% of the nation’s workforce, with the fastest growth among persons 65 and older. Given segment of the workforce’s concerns with continuing to work even before the pandemic, they can be expected to challenge even the appearance of discriminatory treatment.

While potential age discrimination claims pose a particular problem, race, gender, and disability claims are likewise possible. Employees with underlying medical conditions at heightened risk from COVID-19, are entitled to reasonable accommodation for any disabilities under the Americans with Disabilities Act (ADA). Absent unusual circumstances, disability is not a reason for a refusal to recall. The ongoing focus on racial injustice could precipitate claims of race discrimination if African-American employees are impacted in greater numbers than others by layoffs. The same is true for any protected status.

To minimize the potential legal fallout from these difficult decisions on who to recall or retain, employers must tread cautiously. Employers must carefully evaluate the unique circumstances of each case. Is the decision based upon defensible, objective criteria? Is the person chosen to remain demonstrably the better candidate? Has the employer fully explored and documented all reasonable alternatives to termination? Does the employee to be terminated have any legitimate basis for a possible claim of discrimination or retaliation? Employers must satisfactorily address and document these and similar questions during the decision stage rather than in response to a charge of discrimination.

Anticipating the potential for claims of discrimination and being fully prepared to provide the objective bases for declining to recall or terminating an employee is perhaps the most effective means of defending against such claims.

Richard D. Alaniz is a partner at Alaniz Law & Associates, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-law.com.

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