What’s Age Got to Do With It?

Nothing, says federal law, when it entails hiring, evaluations, and firings—which is why understanding the nuances of age-discrimination is so important.

By David Hill

David Hill is an Assistant Editor at Athletic Management.

Athletic Management, 15.3, April/May 2003, http://www.momentummedia.com/articles/am/am1503/age.htm

“The kids need someone they can relate to, someone closer to their age.”

“We need someone with more energy. It seems like this job is getting harder for you every year.”

“I’d like to talk to you about retiring. I think it’s time.”

Have you ever heard sentiments like these around your athletic department? Have you ever thought them yourself?

Discrimination based on age has been illegal since 1967, when Congress adopted the Age Discrimination in Employment Act (ADEA). And yet, in the federal fiscal year 2002, the U.S. Equal Employment Opportunity Commission received 18,673 complaints of violations under the ADEA. Though only 4.3 percent of those were found to have a reasonable cause, $55.7 million in monetary benefits was awarded—or nearly $70,000 per case. That doesn’t include any monetary benefits obtained through litigation.

These figures don’t say whether any of the cases involved employees of institutional athletics departments. But athletics has been involved in age discrimination disputes. Three years ago, for example, two former golf coaches at California State University-San Bernardino were awarded $175,000 after the institution was found guilty of age discrimination. The jury had first awarded them $1.2 million, but the amount was reduced on appeal.

In one of the most publicized cases of its kind, Notre Dame was ordered to pay former Assistant Football Coach Joe Moore more than $170,000 in his lawsuit against the school after he cited comments the head coach allegedly made about Moore’s age when firing him. And age discrimination was part of two recent lawsuits primarily focused on gender equity that ended in favor of coaches against the University of Pennsylvania and Smith College athletics departments.

Because the threshold age for the ADEA is relatively low, 40, age discrimination may be commonly cited in personnel disputes, even if the employer is eventually cleared. Because the involved employees are often high on longevity-based pay scales, back-pay settlements can be costly, and that’s not to mention the cost of rebutting complaints.

“Litigation is expensive to defend,” says Ann Reesman, General Counsel for the Equal Employment Advisory Council, a non-profit Washington, D.C.-based organization that represents large private companies on job-equity issues before government agencies and Congress. “It can cost $50,000 to $100,000 just to get to that stage and win. It can create another way for people to sue you. Even if you win, it’s still expensive.”

Regardless of whether anyone takes you to court, subtle forms of age discrimination can create an unwelcome environment to older employees. And that may cut your organization off from potentially valuable people.

In this article, we’ll outline the basics of age discrimination laws and how they apply to institutional athletics. We’ll also examine how to make sure age discrimination is avoided and weeded out.

First, Know the Law
The first step in avoiding age discrimination is understanding the legal lay of the land. Although the ADEA is the main federal law in this regard, some state laws are broader, and some may forbid age-related discrimination for people younger than 40, says Bert Bisgyer, a Washington, D.C. labor lawyer whose clients are employers. Some counties and cities also have age-discrimination measures. “A person may get multiple bites at the apple,” says Bisgyer.

As for the ADEA itself, the law applies to employers with 20 or more employees, including state and local governments. It forbids discrimination based on age: There can be no mandatory retirement age or involuntary retirement, and age can’t be a factor in hiring, dismissal, promotion, pay, or benefits. Exceptions are written into the law for situations where age is a bona-fide qualification and for when seniority systems, apprenticeships, and benefit plans are in place. Another allows for involuntary retirement connected to a specified system of guaranteed annual income, but it applies in comparatively few situations, says Bisgyer. Early-retirement incentive packages in which workers give up ADEA claims are allowed.

The main responsibility for enforcing the ADEA belongs to the U.S. Equal Employment Opportunity Commission. Generally, employees who believe they have been discriminated against must take their complaints to the EEOC before going to court.

The EEOC has an extensive mediation program and will conduct its own investigation to see if the facts bear out the claim. Some state and local laws, however, do not require such an administrative-complaint procedure, Bisgyer says. The EEOC also may join with the U.S. Justice Department and bring civil lawsuits if it believes an employer engages in a pattern of discriminatory practices.

EEOC mediation may result in monetary settlement or an agreement in which the employee goes back to work without any payment. If a case goes to litigation, the courts may order the employee back to work if he or she was terminated, and award back pay and front pay, which is what the employee would have earned had he or she kept working. Damages can be twice the actual pay lost if the discrimination is found to be willful or especially negligent.

Although most people in supervisory positions know the basics of age discrimination, there are more subtle actions that can go overlooked. And when these smaller instances of inappropriate behavior are combined with failure of the employer to treat problems fairly—through either lack of a sound procedure or through not following it—complaints can be justified. These errors will be glaringly multiplied if the matter goes to court.

Should the EEOC initially find that discrimination probably has occurred—known as a prima facie finding—then the burden falls on the employer to show that there were legal, nondiscriminatory reasons for whatever action was taken regarding the employee. In that light, well-intentioned or seemingly benign actions can come back to haunt them.

“If a decision is partly motivated by an unlawful consideration, whether it’s age, sex, race or something else, that will most likely taint what was done,” says Bisgyer. “If it’s a performance issue, it’s not an age issue,” and nothing related to age can be discussed.

Campus Resources
Heading off discrimination starts with setting up procedures that ensure fairness and don’t allow for considering age. For many large university athletic departments, a human resources specialist will be in charge of writing these procedures and seeing that they are followed. But in many smaller athletic departments, there is no specialist, and the duty will fall on the athletic director.

Drew University Director of Athletics Connee Zotos draws on her campus’ human resources staff for help, then makes sure policies and procedures are strictly followed. That leaves little room for mistakes that allow age to be a factor in hiring or other personnel decisions.

“Our procedures and policies for hiring, firing, evaluations, and termination are very strict,” Zotos says. “We keep a lot of people in the loop, and there’s lots of documentation. Nothing’s left to chance. We know what’s appropriate, what’s inappropriate. And age is clearly not an appropriate measure.”

Zotos says the process is regimented—and she’s glad it is. Though the profession is changing, many athletic administrators and coaches haven’t had adequate training in human-resources law, and calling on professionals elsewhere on campus can be a lifesaver, she says.

“That allows us to work within a framework the university has laid out,” Zotos says. “It protects us and lets us know how to do things. This is where I feel athletic administrators and athletic departments often get themselves into trouble. We’re often afforded too much leeway and left to our own devices. I think it’s gotten a lot better, but for many years, athletic administrations and coaches have been allowed to work in a vacuum. Some people resist supervision, but supervision can protect you.”

Eastern Kentucky Interim Athletic Director Jack Lengyel says that when he was at the U.S. Naval Academy, the 174-employee athletic department had its own human resources person who brought up discrimination awareness at monthly department-wide meetings. Now at a smaller school, Lengyel draws on specialists from other parts of the university.

“I have to basically make sure that institutional HR person comes in at least once a year and gives a lecture to our coaches’ meetings and talks about age discrimination, sexual discrimination, diversity, etc.,” Lengyel says. “Those are issues that are on the table today that require constant vigilance, a rewriting of your policy and procedure manuals and a constant education of all your employees.”

Lengyel stresses two actions: delegation and continuity. “In almost all businesses but maybe more so in athletics, there is constant turnover. Within maybe four years, you’ve got 50 percent turnover in your department. So there has to be a constant vigil and a commitment in your policies and procedures and on educating all your new staff members.

“We delegate that down,” Lengyel continues. “I’m in charge of hiring for the department, but I tell people, ‘If you’re in promotions and marketing, you’re probably going to be the lead person on finding and hiring your assistant marketing and development people.’ So you’ve got to educate everybody.’”

Sound Procedures Protect
Good procedures start by making sure that applicants aren’t asked their age. Experts also recommend employers avoid asking when a person graduated from college or high school because that can be taken as age-specific. It’s an example of the otherwise benign pieces of information that can make it hard to prove an employer’s action was not discriminatory, says Kathryn Dodge, a consultant at HR Answers of Tualatin, Ore. You might not have asked any applicants their age, but if you didn’t interview the two candidates who are over 40 but did interview the two under 40, and could infer their ages from their resumes, that fact might be seen as discriminatory, Dodge says. If you believe those over 40 lacked relevant experience, you’ll have to make sure those under 40 actually had it, she adds.

Qualifications for a particular position should be set forth, but take care when doing so, Bisgyer says. For example, if an athletic director defines the job of a coach as someone who must be out in 110-degree weather and has to get on the field and demonstrate for players, that could have an adverse impact on older people, so the athletic director should ask him- or herself if that is truly a valid description of the job.

“Hitting fungoes can get tougher as a person ages,” Zotos says. “But a coach can find a way around that. He could assign that to assistant coaches, or get players to hit the ball for him. It’s not necessarily an intrinsic part of the job. As we all know, coaching is nothing more than excellent teaching.”

Recruiting and screening job applicants can cause problems when the task is delegated, says Dodge. In athletics, head coaches might find their assistants or managers may fill vacancies in their departments. Those who aren’t trained in the process might examine too small a pool of candidates or value certain traits over others without justification, and either form of shortcoming could be seen as evidence of discrimination. “We sometimes don’t open up to a pool beyond our comfort zone, and typically, our comfort zone is people who are similar to us,” Dodge says. “Typically, an older work ethic is putting in the hours, whereas the younger work force might be saying, ‘I work harder when I’m here and can be more effective.’ Genuinely different styles could potentially be an area for age discrimination.”

Once hiring is done, one of the most valuable tools in maintaining fairness is a well-designed and well-applied evaluation system. It can help keep age from getting mixed in with legitimate performance factors, and help apply standards and procedures consistently toward every employee.

“The ADEA doesn’t make a job a sinecure after somebody’s had a position for 40 years,” continues Bisgyer. “But it does ask an employer to look at the real problem. If a coach hasn’t had a good recruiting class in five years, if he has had losing teams and isn’t filling the stadium, those are legitimate issues, and the review process has to address that.”

Perceived cultural or customer preferences can’t be part of it. “When I started practicing law,” Bisgyer says, “a number of airlines had rules that when stewardesses hit 30 years old, that was it for them, because the thinking was most of the customers were businessmen who traveled and like unmarried, young stewardesses. The airlines who did this tried to say it was a ‘customer preference.’

“If we had a bunch of athletes,” Bisgyer continues, “and we said, ‘They don’t want this old guy to coach them, that they want a coach who is 25 and who wears a retro Sixers jersey just like they do, that’s akin to ‘customer preference.’ And that’s not allowed.

“But if there was evidence a coach abused players, or yelled at them excessively, or played favorites, those are legitimate concerns. How about not practicing sound, widely recognized up-to-date coaching techniques? I would think that would be fine as a reason. But if that’s going to be the criteria that you’re going to use to get rid of somebody, it needs to be uniformly applied.”

Job assignments and training opportunities must also be handled with care. “We hear frequently in the business world,” says Dodge, “‘Well, there’s all this new technology and it might be difficult for the older workers to catch on.’ Perhaps that’s true of an individual, but it may have to do with ability or willingness, not age.

“Another problem is where an employer won’t provide training necessary for everyone to learn,” continues Dodge. “Training opportunities have to be made available fairly, regardless of age or any assumptions about employees.”

In conducting performance reviews, Dodge’s company recommends avoiding language that could be taken as ageist. Such phrases include “employee lacks energy,” “works too slowly,” “not interested in change,” or “is cranky.” Substitutes might be “employee is uncooperative” or “employee is a low producer.” Supervisors should also note insubordination or failure to follow direction.

Be sure that there is a complaint procedure in place should an employee feel there’s been discrimination and that it is coherently set forth in employee handbooks. The procedure should spell out to whom the complaint should be made, that it will be investigated without retaliation, and that the employee will be notified if any corrective action is taken. Bisgyer also recommends building in a process that allows the employee to make the complaint to someone above any supervisor who might be the object of the complaint. This might mean, for instance, taking it to the athletic director instead of the head coach of a team.

Documentation is very important as it is the best way to rebut charges of discrimination. If the employer can show that there were legal legitimate reasons for demoting or firing an employee, the person making the complaint has to show that these reasons were just a ruse. And that can be difficult if documentation shows that the employee performed poorly.

In addition, if someone on staff does exhibit age discrimination, document what actions were taken to correct the situation. “If the corrective action was only done orally, it just isn’t convincing to a fact finder, be it a judge, a jury, or an administrative hearing officer,” Bisgyer says.

“The rule I tell employers is this: Do the right thing,” Bisgyer says. “Even if your catch it at the final hour, it’s not too late.”

Setting the Tone
As an administrator, you can play an important role in communicating a zero-tolerance stance toward ageism The message to keep driving home to supervisors is to focus on performance and keep age and other issues out of it, says Reesman. That applies even when a supervisor might think it easier or more polite to talk age, or raise the closeness to retirement, instead of confronting a genuine performance problem.

“Instead of saying, ‘You can’t cut it anymore,’ you say, ‘We need somebody younger,’” Reesman says. “But both are still a reference to their age, and making an employment decision based on somebody’s age is illegal, period.”

Retirement can be a legitimate question for an organization’s planning. But coming out and asking about it can be taken as discriminatory. The right way to get at it is through regular reviews and feedback.

“It’s not illegal to ask about someone’s career aspirations in the review process,” says Bisgyer, “and to ask how the employer can help the person get there. It’s if you use that information for a discriminatory purpose that’s a problem.”

“In evaluations, I always ask my staff members, ‘What are your plans?’” Lengyel says. “They’ll say to me, Jack, I want to work 10 more years’ or ‘I want to work three more years,’ and I will always say to them, ‘Have you made the necessary planning for your retirement? How can I help you facilitate that?’ You have the best of all worlds when you do that. So I think that’s a fair question. You have to have a trust level where you can communicate about anything.”

If procedures are set and followed and supervisors and other employees are taught what’s proper and what’s off-limits, chances are you’ll have the right atmosphere for avoiding discrimination. That’s important, because employers can be liable if they tolerate an atmosphere of harassment among employees.

Lengyel says it’s up to athletic directors to set the tone. “The more we become aware of it,” he says, “the more we become sensitized against it within the workplace, the better the environment is, and we have a chance to reduce those particular issues in the workplace.”

Zotos says following strict procedures in hiring and other human-resource matters sends the message that there are right ways to do things, and nothing else is tolerated. “You create a department ethos that every coach has to work under,” she says.

“I know it’s funny and cute in some places to make jokes about old timers and dinosaurs,” says Reesman. “But if you want to test and see how it works, substitute racial comments. These words are just as offensive as racial comments or gender-based comments.”

For more information about the ADEA, see www.eeoc.gov/facts/age.html. An overview of federal laws regarding other forms of employment discrimination is at www.eeoc.gov/facts/qanda.html.

Sidebar: Unanswered Questions

There are some evolving questions regarding the Age Discrimination in Employment Act, says Ann Reesman, General Counsel for the Equal Employment Advisory Council, an employers’ group. One is whether job requirements that appear neutral could be discriminatory to a certain class of people, in this case those over age 40. This is established with regard to race but not to age, she says.

An example might be telling applicants that they must know how to use a particular computer software application, when in fact it’s a small, seldom-used part of the job that’s helpful but not essential. Or, an employer might prefer to have college-educated receptionists, but the duties do not actually require one.

Another evolving issue questions whether ADEA allows reverse age discrimination within the protected class. An example would be hiring a 55-year-old coach over an equally qualified 41-year old because a department wants someone who appears more distinguished. Courts may settle those questions in the next few years.