Over 40? You’re “Outta Here!”

By: Amy Epstein Gluck

So you’re getting $400,000.

For what? A house? Years of annual salary? Renovations?

No. This is the amount one hospital in Colorado will have to pay for terminating 29 employees—every single one of whom was over 40 years-old.The Equal Employment Opportunity Commission (“EEOC”) just ordered the hospital to make this significant payout because all of the employees it forced to resign not only were over age 40 and worked for the company for a decade or two, but were terminated for the same alleged performance deficiencies that younger employees committed –  yet were treated more leniently.

The Age Discrimination in Employment Act prohibits treating employees differently in the terms and conditions of employment—i.e., such as  terminating them—on the basis of their age.

So, this is age discrimination people! Or so claimed the EEOC, and the hospital paid up.

Why do we even have the ADEA?

Sometimes it pays to look at the language of a law. In enacting the ADEA, Congress stated its purpose:

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

The lesson?

Apply your policies and standards evenly! Without regard to age (or race, gender, disability, religion, etc.).


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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.