Is there a higher risk of Age Discrimination and Americans with Disabilities Act claims with an increasingly older work force?

Our population is becoming increasingly older, because men and women are living longer.  Moreover, many individuals are having to work longer than expected, because their retirement benefits have dwindled or their retirement plans were significantly disrupted.  Does that mean that Employers can expect a greater risk of Age Discrimination and Americans With Disabilities Act claim?  The simple answer would be yes, there is an increasing risk.  The perception is that because older workers get sick more and often suffer from greater health problems there may an increase risk of claims.

To a certain extent the saying “that the older I get the less I can do what I did in my twenties and thirties is true.”  However, Courts and Employment Law regulations seem flexible enough to prevent Employers from facing a greater risk.  For example, recently the Seventh Circuit found that an Employer was not liable for Age Discrimination claims or Americans with Disabilities Act claims, where a 54 year old Plaintiff had brought the claims.  The Plaintiff alleged that he suffered from a brain aneurism and his supervisor had asked him about “his retirement.”  The Plaintiff asserted that this was sufficient evidence of age and disability discrimination.

However, the Court undertook a deeper inquiry and found the following: a) the supervisors questions about Plaintiff’s retirement were asked more than two years prior to his termination; b) the aneurism did not prevent Plaintiff from performing his job or qualify as a major limitation of his life activities; c) the Plaintiff had worked for 18 months prior to his termination without having his aneurism disrupt his work; d) prior to his termination there were a series of complaints about Plaintiff’s work performance that management had received.    Thus, the Court awarded summary judgment to the Defendant Employer.

As illustrated from the above, if there were no complaints about Plaintiff’s performance and there was an actual disruption of Plaintiff’s ability to perform his work, and the aneurism had limited a major life activity the outcome may have been different.  The Supervisor’s statements were deemed to be too remote in time to evidence discrimination by management at the time of Plaintiff’s termination.  Thus, it seems like older workers are not necessarily going to get a free pass because they are asked “about retirement and suffer some health difficulties.”  The health ailments truly do have to rise to the level of a disability and impair an older worker’s life activity in the same manner as younger workers.

Thus, it appears that although the number of claims among older workers may increase, the number of claims that succeed should not increase, because of the level of inquiry that Courts make in Employment Law cases.  The current state of Employment regulations relating to Age and Disability discrimination should adequately protect Employers from being liable for more potential claims from older workers.

See: Age and Disability Discrimination

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