When a full-time CBS 11 traffic reporter resigned in 2014, Tammy Dombeck Campbell, a freelance traffic reporter for the organization, applied for the position. She was surprised when CBS 11 hired a former NFL cheerleader with no formal training or experience in journalism or reporting, considering the job announcement required five years of professional broadcasting experience and extensive knowledge of local traffic in the Dallas/Fort Worth area. Before offering the position to the 24-year-old cheerleader, CBS 11 made an initial offer to a 27-year-old applicant who later withdrew from the new-hire process. Not only did Ms. Campbell work for CBS 11, but at age 40 had extensive experience in traffic reporting for the Dallas/Fort Worth metropolitan area. According to the EEOC, neither the former cheerleader nor the 27-year-old candidate met the full-time traffic reporter position’s hiring criteria. Not only did the EEOC regional attorney argue that CBS 11 preferred less-qualified and younger candidates for the role, but they also reverted to old stereotypical ideas about female reporters. The CBS affiliate claimed that the company relied on the ‘it’ factor to make their hiring decisions for suitable replacements. The factor for not hiring Ms. Campbell was her age, according to the EEOC.
Age discrimination is against federal law according to the Age Discrimination Act of 1967, which protects workers 40 years of age and older from employment discrimination. This act applies to both employees and applicants. It is unlawful to discriminate based on age concerning any terms or conditions of employment, including hiring, firing, promotions, layoff, compensation, benefits, job assignments, and training.
Employers can be extremely vulnerable to age discrimination claims, especially during layoffs, promotions, and hiring new applicants. It’s important that all employment decisions, even the decision to let someone go, be based on their skills, performance, experience, and talent. When considering initiatives, whether it’s an internship, apprenticeship, or a leader-mentor program, be sure that age is not a factor or a basis for participation. As the EEOC v. CBS Stations Group of Texas; Television Station KTXA and KTVT-TV, (Civil Action No. 3:17-cv-02624) demonstrates, the organization’s misstep when formulating the criteria for a traffic reporter replacement was their refusal to follow their qualifications for a traffic reporter, even going so far as to use the “it” factor as a futile and baseless argument in making hiring decisions.
Consider these guidelines when developing age discrimination policies for your business:
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Remove age limits or any age criteria in a promotion or advertisement of any position, program, or internship. According to the ADEA, age limits as a qualification may occur only under rare circumstances, such as when it’s necessary for your business’s normal operations.
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Train managers and supervisors about age discrimination, how to avoid it, and when to report such behavior.
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Train all employees to avoid ageist remarks such as ‘over the hill,’ “past their prime,” or phrases like “you can’t teach an old dog new tricks.” Even frequently asking senior employees when they plan to retire can be interpreted as ageism.
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Be prepared to investigate all allegations of age discrimination when reported.
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Carefully document all efforts to prevent age discrimination, including all investigations.
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When considering a reduction in the workforce, be sure to consult with legal counsel regarding state employment laws.
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Consider an alternative to workforce reductions by offering reduced hours, benefits, or pay.
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Define and document a “good faith business” reason for layoffs. Such causes include economic necessity (e.g., employer’s survival, loss of business or contract, needed cost-cutting measures), reorganization or consolidation of job functions, elimination of roles or redundant positions, and job functions being replaced with or reduced by technology.
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Determine and document the layoff criteria and ensure that you do not include a protected class as identified by the EEOC and ADEA.
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Define the reduction in workforce using criteria such as seniority, elimination of job functions, or elimination based on an objective, independent evaluation process.
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If offering a severance package, refer to the ADEA for specifics; provide consideration for the waiver of ADEA rights, advise the employee to consult with an attorney, and allow the employee 21 days to consider the agreement before signing it.
