Age Discrimination or Protecting a Vulnerable Employee?

by Evil HR Lady on April 28, 2020

My “position” was called back to our store after furlough but I was not. My coworker,  who I trained and share the position with, was called back yesterday. No one will answer my calls or questions about my possible return. I am 58 years old and have had higher evaluation scores than my coworker. Is this a case for age discrimination? They will not tell me that I am laid off yet but they are not having me return to work alongside my coworker. Any advice would be appreciated.

From the information here, I can’t say for sure whether this is age discrimination. There could be a zillion reasons why your coworker was called back and you were not. You may be a better overall employee, but she can do X better than you can and they really need someone to do X. Or, perhaps she has more availability than you do. Or, they only needed to call back ten employees, they put everyone name’s in a hat, and pulled out the first ten. All are possible.

It’s also possible that it is age discrimination. They prefer younger workers or their unconscious biases make them discount your higher performance evaluations because naturally younger workers are harder workers.

It’s also possible that they are concerned about you. The older you get, the more likely you are to suffer serious consequences and death from Covid-19. So, they may think they are being nice in not bringing you back. After all, if you’re furloughed, you’re receiving unemployment pay and they’ll bring you back when it’s safer.

It sounds nice. It is nice. It’s also illegal.

It’s either age discrimination or an ADA violation when an employer decides not to bring you back based on your protected characteristic. They may think they are being kind–especially if you’re getting unemployment with the enhanced $600 payment.

Now, of course, it’s perfectly legal for you to happily take your unemployment check and wait for the next round of recalls. But, you can also file a complaint. They may not be responding now, but they will respond if you send an email labeled “Official Complaint of Age Discrimination.”

However, in this case, I suspect you’ll catch more flies with honey. Try reaching out and explaining that you’re anxious to return to work. Give them a chance to respond and if they say no, follow up. If you still feel like it’s age discrimination at that point, make the formal complaint.

{ 4 comments… read them below or add one }

MariaRose April 28, 2020 at 6:51 pm

Regardless of whatever reasons is behind who gets called back in what sequence, the company needs to have a response to give the employees not yet called back in. This is not the time to practice under the table semantics and cover their liability by hiding ageism. The employees deserve the exact policies in play as to how people will be coming back to work based only on workplace needs and safety precautions. Age has nothing to do with it, unless mandated by federal health statements. Okay certain people have a bigger health risk but if they are putting the safety precautions in place, then everyone is equal to work. Any company that uses COVID-19 as an excuse to thin their own “elder” employees off the payroll deserves to be sued.

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Lyn April 28, 2020 at 9:58 pm

The fact that no one is returning the calls or answering questions is concerning. Companies that are bringing employees back need to communicate what is going on. If they don’t communicate, I agree: a company that uses this as an excuse to thin their older employees deserves to be sued.

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Nanners April 28, 2020 at 10:06 pm

What a horrifying position to be in as a manager. If your top performer is the most at risk due to age/health, and you only need one staff member to work, then you have to call in the one person who is most at risk of death or you will be in violation of ADA. You can’t even call them and ask if they are comfortable working, because then you are offering the job back and if they refuse, then their unemployment ends. It’s a terrible Catch-22.

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grannybunny April 29, 2020 at 2:21 pm

If, by returning an employee to work, you are substantially increasing their risk of death, you don’t need to be calling anyone back to work, regardless of their age. While it’s the employee’s decision — not the employer’s — as to whether their age dictates they not return to work, the ultimate responsibility for providing the safest possible workplace remains with the employer. And, by the way, someone 58 years of age — absent some other co-morbidity — is not currently considered high-risk when it comes to COVID-19.

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