The Coronavirus has dominated all of our lives – with luck, without disruption to our health. Amidst the virus, the Supreme Court has been issuing important decisions impacting many laws, and therefore, individuals. One such recent decision — Babb v. Wilkie explored the Age Discrimination in Employment Act (ADEA).

The ADEA prohibits discrimination against workers over 40 in hiring, firing, and related personnel decisions. Applicable to employers with 20 or more employees, the ADEA requires that employers carefully execute personnel decisions – of particular significance given that many workers are choosing to work until later in life.

The Court’s Babb decision held that federal employees may have an actionable claim under the ADEA if they can show any form of bias related to age in an employment decision. This decision widens the previously-held view that proving discrimination had to be directly linked – or “but for” – the employees age, which is oftentimes difficult to prove.

Although inapplicable to private sector employees, the Babb decision demarcates the Court’s dedication to employees’ rights under the ADEA. I recommend that both private and public sector employers take proactive steps to limit liability and protect an aging workforce, including:

1. Establish clear (and published) policies on hiring individuals. Those in management should be trained that candidates should be interviewed/assessed based on objective job qualifications and skills – rather than connections or “gut feelings.”
2. Use caution when terminating someone over 40. While having “young blood” may seem attractive to many organizations, it is an illegal reason to replace an older worker. Ensure that the reason that your team is terminating someone over 40 is because they cannot objectively perform their job – otherwise, they likely should not be terminated.
3. Conduct trainings on your performance metric policies. Once hired, all employees (regardless of age) should be reviewed in a similar manner. Avoid a claim of “bias” by treating everyone’s work equally.

Feel free to reach out to me to discuss the Babb decision and your workplace policies. Stay safe.