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Signs Point To More Accountability For Age Discrimination

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Orthopedic surgeon Zeferino Martinez was fired from the hospital where he worked a month after UPMC Susquehanna purchased it. The action was an about-face from what he’d been told after the acquisition. Initially, UPMC representatives told Dr. Martinez his contract would be continued and that he’d be given new equipment to support his work.

Except, that’s not how it went down.

When they fired him one month later, he was told it had nothing to do with his performance. Rather, they were moving in a different direction.

The case background documented Dr. Martinez as a board-certified orthopedic surgeon with four decades of experience. He completed general and orthopedic-surgery residencies, a specialty fellowship and worked in several hospitals.

He was hired in 2016 on a three-year contract as the hospitals’ only orthopedic surgeon. When Dr. Martinez was fired, his surgery schedule was booked out for several months. He was seventy.

Soon after firing him, the hospital hired a doctor who took over some of Dr. Martinez’s job functions. When the hospital posted an opening for an orthopedic surgeon, Dr. Martinez applied three times but never received a response. Instead, the hospital hired someone else. Both of the new hires were significantly younger, less qualified and less experienced than Martinez.

A Move Toward Accountability

Historically, age discrimination has been difficult to prove, with the claimant bearing the burden of proof. In the case of Dr. Martinez, consistent with history, the lower court dismissed his complaint because he could not prove his assertion.

When Dr. Martinez's case moved to the Third Circuit Court of Appeals, the lower courts’ decision was overturned. In the opinion, the circuit judge wrote that the burden of proof would become a part of discovery.

This is yet another convincing sign that companies will face increased accountability for age discrimination.

Often referred to as the most socially acceptable ism, workplace ageism has been on the rise over the last decade. Those 65 and older make up a greater percentage of the population than 18 and under. Not only that, people are living longer, healthier lives – even in the face of COVID – and employment is a critical component of maintaining a sense of livelihood and wellbeing.

Last month’s Third Circuit Court ruling comes at the same time that the U.S. Equal Employment Opportunity Commission (EEOC) published new information on behavior and language that may demonstrate systemic discrimination. For example, companies that refuse to rehire former employees in good standing could indicate systemic age discrimination. And, the common practice of job postings that convey preference (i.e., recent graduate, young, energetic, digital native), is another potential indicator of systemic age discrimination.

The recent Third Court decision and EEOC guidelines follow the trail of the EEOC finding against IBM leaders who directed managers to replace older workers with early-career hires. In the determination letter sent to the charging parties, the EEOC reported resource actions analyzed between 2013 and 2018 showed more than 85 percent of redundancies impacted older employees.

And there was PricewaterhouseCoopers (PwC), against whom a federal court ruling granted collective action to plaintiffs who alleged PwC discriminated against older applicants by recruiting on college campuses and school-affiliated job sites. PwC later settled.

There are many others.

Employers Take Notice

With a new administration in the White House and a clear plan to elevate diversity, equity, and inclusion, age will become an important focus for employment and labor cases. Employers not already on notice need to take notice – and action.

Companies should pursue a holistic approach to equity. Instead of compartmentalizing and focusing on the most obvious issues of race and gender, they need to approach equity more equitably.

Instead of addressing workplace age bias and discrimination as a separate programmatic effort, incorporate it into what is already being done.

Consider this: women and people of color 50 and older are most impacted by age bias and discrimination and suffer the highest unemployment. Age compounds race and gender discrimination! Therefore, any initiative for racial and gender equity should also point out the double (and triple when referring to women) potential threat of bias and discrimination.

Secondly, issues of age discrimination impact every dimension of diversity. Addressing age provides the most equitable means of moving the needle across the board, so long as diversity, equity, and inclusion are strategic priorities.

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