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.

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