Company limits employee options for age discrimination claims

Frank S. Clowney III

As Californians live through these unstable economic times, it is cold comfort to realize that most of us are sharing similar anxieties. Very few people are immune to the threat of sudden unemployment. But, perhaps the most vulnerable among us are those who have been part of the workforce the longest.

When an employee who is 40 years of age or older is part of a group layoff, he or she may be asked to sign an agreement which waives their right to file an age discrimination claim against their employer. The issuance of a severance package may be contingent upon this agreement being signed.

The U.S. Equal Employment Opportunity Commission requires that employees in such a situation

be given a 45 day period to give the waiver consideration and they are advised to consult with legal counsel. In addition, the employee should be provided pertinent information regarding various aspects of the layoff. In turn, the employees can use this knowledge as part of their consideration of filing an age discrimination lawsuit.

The technology and consulting company IBM has of late implemented a process which circumvents this requirement. Rather than providing the layoff information, employees are offered the opportunity to enter into private arbitration if they believe they were terminated due to their age.

While arbitration may seem a fair and equitable method for following through on a discrimination claim, IBM’s motives may not be so noble. According to a study done at Cornell University that analyzed cases from the year 2007 to the year 2010, employees won only 21 percent of discrimination cases carried out in arbitration. That figure jumped to a 36 percent employee win rate for such cases heard in federal court.

However questionable this scheme appears, a representative of the EEOC states that it is likely an acceptable way for a company to handle discrimination claims.

This case bears out the importance of having legal representation when dealing with any scenario where age discrimination becomes a possible issue. Be it in a California courtroom or at an arbitration table, you should not have to take on an employer alone. An attorney who is familiar with state and federal age discrimination laws may prove a great asset in responding to unfair treatment.

Source: “IBM Withholds Job Cuts Data, Making Age Claims Harder,” May 12, 2014