Age Discrimination Claims in the Workplace: Key Considerations for Employers

A significant element in proving an age discrimination claim in Wisconsin is that the claimant is 40 years old or older. With Wisconsin’s median age hovering right above 40, employers should be mindful of the rights of workers aged 40 and older to avoid exposing themselves to potential litigation.

Establishing an Age Discrimination Claim

The Wisconsin Fair Employment Act (WFEA) enumerates a wide variety of protected classes, one being a safeguard from age discrimination. The federal Age Discrimination in Employment Act offers similar protections as the WFEA but only extends to employers with 20 or more workers. Conversely, the WFEA is a bit more expansive in that it applies to nearly all employers, public and private, irrespective of how many employees an employer may have.

When alleging an age discrimination claim, an employee bears the burden of proving the following four elements:

1. They were 40 years or older.
2. An adverse employment action was taken (such as termination).
3. They were qualified or performing the job in a satisfactory manner.
4. A younger employee was selected for the position or was treated more favorably.

If an employee-claimant satisfies these four elements, the employer is then tasked with defending the adverse employment action to state that such action was not predicated on age. The burden then shifts back to the employee to demonstrate that the employer’s explanation was a pretext, or an excuse to mask the discriminatory action. Undergirding an employee’s claim is the core principle to convince the court that age was a determining factor in the adverse employment action, not merely just a factor.

Breaking Down the Four-part Test

Presumably, the first two elements noted above of an age discrimination claim are fairly cut and dried; there likely won’t be much argument as to whether an employee was 40 years or older and if they were the subject of an adverse employment action. The third and fourth elements leave more room for interpretation. With respect to the third element, an employee being “qualified” or conducting their work in a “satisfactory” way is quite objective. Similarly, regarding the fourth element, it may be difficult to ascertain if a younger employee was treated “more favorably.” When evaluating the third element, keep in mind that, performing work in a “satisfactory” manner is not age-specific. In other words, an employee 40 years or older is not shielded from adverse employment actions simply because of their age. Thus, if an employee 40 years or older is not demonstrating adequate or satisfactory performance, they still may be the subject of an adverse employment action, and an employer is under no obligation to accommodate an older employee because of their age. The key consideration here is that the employer maintains a neutral disposition regarding performance standards, adhering to impartial performance metrics that do not contemplate an employee’s age.

Revisiting the four-prong test, how can an employer avoid elevating a younger employee in place of the older, aggrieved employee? Perhaps such reason wasn’t performance-related, and an employer was conducting a layoff of its workforce. An employer possesses discretion to conduct layoffs, even if the upshot ultimately affects older employees. Again, the idea of neutrality is central to this process. As a result, older employees cannot be targeted amidst a series of layoffs, they can’t be relocated to divisions or units more susceptible to being laid off, and a layoff cannot be predicated upon an employee’s eligibility for pension benefits.

What Practices Should an Employer Take?

Detailed recordkeeping is essential: clear documentation of policies, performance issues, or layoffs helps show that any adverse action was predicated on legitimate reasons, not age, and supports an employer’s good faith defense against discrimination claims.

Furthermore, employers should ensure that all employment policies related to hiring and firing standards are memorialized. An employee handbook may explicitly say that age discrimination is prohibited. In hiring and recruiting, employers should avoid age-coded phrases like “recent college graduates,” “energetic,” “young,” or “new blood.” Instead, employers should base prerequisites solely on job-specific qualifications, remaining age-neutral and unbiased.

Bottom Line

Employers should maintain neutrality throughout the hiring and firing process, treat all employees equally, and keep thorough documentation to support decisions and reduce litigation risk. Contact our employment discrimination attorneys for more guidance on this matter.

This article, slightly modified to note recent updates, was featured online in the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.