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Older worker slows down: Does firing = bias?


When older employees hear the word “slow,” they may immediately assume that’s a code word for “old.” But sometimes, slow just means slow.

As a new case shows, if you have workers who can’t meet the job’s re­­quired—and preferably written—performance standards, you don’t have to keep them on staff, regardless of their ages.

If you do plan to discipline or terminate an older worker due to reduced or poor performance, make sure you treat all other employees the same way for the same offenses. Consistency is key.

Also, remember that aging, by itself, is not considered a disability under the ADA (see box below). However, older employees may have medical conditions related to age that do rise to the level of a disability and, thus, must be accommodated by the employer.

Recent case: Cheryl, a cellular service sales representative, shared a work space with several younger sales reps. From day one, supervisors counseled Cheryl on her tardiness. She was often late for her shift and rarely returned from meal breaks on time.

Although Cheryl did receive one positive review, her performance slowly deteriorated. Her supervisors constantly complained that she took far too long to complete transactions and often took much longer than her colleagues to close out at the end of the day.

Finally, when nothing improved, Cheryl was terminated.

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She sued, alleging age ­bias and claiming “too slow” meant “too old.” Plus, she said older customers sought her out because of her maturity and those customers took longer to shop.

The court shot down her case, saying the company had given Cheryl plenty of opportunities to improve her speed and correct her tardiness. (Austin v. Alltel Com­­mu­­ni­­c­a­­tions, et al., No. 1:09-CV-900, MD NC, 2013)

Final note: If supervisors made other comments to accompany their complaint of slow performance, the case might have turned out differently. But no one called Cheryl “old” or made other negative comments.

Supervisors focused on her actual performance, measuring it against all co-workers, both young and old. They used objective measures, such as time spent to set up accounts for customers.

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Aging and the ADA

According to the Job Accommodation Net­­work:

“Aging, by itself, is not an im­pairment, but a person who has a medical condition (such as hearing loss, osteoporosis, or arthritis) often associated with age has an impairment on the basis of the medical condition. A person does not have an impairment, however, simply because he or she is advanced in years.

“The ADA does not contain a list of medical conditions that constitute disabilities ... Therefore, some people with age-related impairments will have a dis­­ability under the ADA and some will not.

“A person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having an impairment.“

For more tips on accommodating aging employees, go to askjan.org.