You are a new regional manager for a clothing chain, you want to learn as much a

Question

You are a new regional manager for a clothing chain, you want to learn as much about the company as possible. In doing your research, you decide to review employment data for the past two years and discover that no one over the age of 45 has been promoted during that time. This is surprising since almost half of the employees over 45 should have been eligible for promotion.

In essay style ( at least five sentences and answering all of the questions) please respond to:

What should/must you do?

What law, if any, has been violated?

Is there evidence of disparate treatment, disparate impact, both or neither?

Is it possible in this case that age is a BFOQ? What information would be required to make that case.

Explanation / Answer

I should enquire about the reason for not promoting the employees over the age of 45 as the discrimination may lead to legal issues in future. There is federal law which prohibits discrimination based on age during employment. It is my responsibility as a supervisor to ensure that there is no discrimination happening in my department. Moreover it is important to ensure ethics in workplace to motivate the employees. Hence I should identify the reasons behind not promoting people aged more than 45 and take necessary steps to avoid any illegal and unethical activities.

Age Discrimination in employment act or ADEA prohibits discrimination against employees who are above 40 years in any aspect of employment including promotions. Age discrimination occurs when an employee is treated less favorably based on age. According to ADEA it is illegal to discriminate employees while making employment decisions regarding hiring, firing, training, job assignments, layoff, promotions and any other condition of employment. Here the company has discriminated by not giving promotion to people over 45 years of age. Hence ADEA has been violated here based on promotion.

There is evidence to prove both disparate treatment and disparate impact. The employment data for the past two years shows that no one over the age of 45 has been promoted during that time. It shows the intentional discrimination towards the protected class under ADEA which proves disparate treatment. The statistics also show that there is some policy that adversely affects the promotion of people over 45 years as half of the employees over 45 years have been eligible for promotion but not promoted. This can prove disparate impact.

It is possible that age is a BFOQ in this case. BFOQ or Bona fide occupational qualification allows age limitations if the age limitation is necessary to perform the job functions adequately. Hence it is possible to make age as BFOQ if the company is able to prove that no member over 45 years of age can perform the job properly after promoting. The information required to make that case includes the job requirements and the information regarding the physical fitness required to perform the job properly after promoting to such positions. This information would help to understand whether age is a factor in determining the employee capability.

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