Overview
As Perlmutter, Bailey & Netting (2001) note, the 1967 Age Discrimination in Employment Act (ADEA) is a current law that exclusively protects persons above 40 years from employment discrimination. Specifically, the law prohibits employers from discriminating employees beyond 40 years when terminating workers from employment, hiring workers, compensating, training, issuing benefits, assigning job tasks and during layoffs. In addition, it prohibits the retaliation of employers or any individual against individuals opposing the discrimination of persons above 40 years in employment. There are various viable sources where HMOs can learn about ADEA. These include human resource law books, federal government agencies, human rights organizations and HMOs agencies or consultancy firms. The simplest way is to learn through the internet as most organizations involved with the ADEA have websites that display information about ADEA. Unfortunately, even with so many resources, HMOs managers barely know the implications of the law on its operations and the numerous ethical issues it posses on the organization. Smooth operations are fundamental for the success of HMOs. Mitigating ethical issues in law can help mitigate litigations and save an organization’s image. How does ADEA affect HMOs operations? What ethical issues does ADEA pose and how can HMOs evade them? Addressing these questions will ensure that ADEA does not sabotage HMOs success efforts.
Impact on Operations
To enforce ADEA, Brody (2005) elaborates that HMOs are required to change their daily operations. HMOS are required to post notices containing ADEA applicability as outlined in Equal Employment Opportunity Commission (EEOC) in prominent places where employees and employment applicants can easily see and access them. In addition, HMOs have to make and maintain ADEA related records. For instance, they have to maintain three-year records that show the address, name, occupation, date of birth, daily/weekly compensation and pay rate of every employee. More so, they have to maintain records of layoffs, discharges, demotions, promotions, discharge, physical examinations and tests related to employee’s action. Therefore, HMOs have to scrutinize employees’ actions and record the above ADEA related activities on daily basis, and on a case-by-case basis (each employee) to accommodate and enforce ADEA.
Ethical Issues
The ‘loose lips sink ships’ motto applies in the ADEA law and therefore, ageist remarks against the potential group employees are prohibited. In most court cases including Alphin v. Sears, Roebuck and Co. (1991), the focus is on ageist remarks. The court made a ruling based on the store’s manager comment on how the employee was too old, has been around for long and yet was earning so much. Denesha v. Farmers Insurance Exchange (1998) shows how a plaintiff got $149, 906.97 after a manager stated that he would get rid of the ‘old heads’ to improve the company. Critics argue that ill-motivated employees may try to assert discriminatory motives to HMOs managers’ statements. Ziegler v. Beverly Enterprises (1998) shows how an ill-motivated employee asserted that the resignation was age related and therefore based on the manager’s comment ‘too old for work.’ However, a scrutiny on the employee’s retirement plan revealed that the employee-working period was over and therefore, the evidence was baseless. As critics indicate, not all HMOs are able to evade ill-motivated employees and hence, the ADEA becomes a potential exploitation tool for ill-motivated employees (Pynes, 2009).
As Pynes (2009) further notes, there is also the issue of the relation existing between age, service period and salary. In most cases, employees who have served for long are always the older employees and tend to earn more. The HMOs find it suitable to replace them with the young employees who can work under low wages. Under ADEA, no disparate treatment occurs if the employer acts under the influence of other motivational factors other than age. This shows that there is no relation between age and wage, and therefore, an employer can act on wage while ignoring the age. Critiques argue that HMOs can violate or unethically use the ‘other motivational factors’ to discriminate older employees on the ground of wages while in reality they dismiss them because of their age. The Snow v. Ridgeview Medical Center (1997) is a major proof. An older employee (40 years and above) was dismissed by a HMO on the grounds of huge earnings and services length but the court asserted that the ‘dismiss’ was not related to her age. In reality, the ‘dismiss’ took place because she had served long (was old) and earned more, an indication that age was a factor as well.
At times, Brody (2005) notes that HMOs might decide to replace an employee within the protected group with a younger person within the protected group. Even though not stated under ADEA, the Supreme Court identifies that under ADEA, discrimination also takes place based on age, not just the protected group. The O’Connor v. Consolidated Coin Caterers Corp (1996) ascertains this when a 40 year-old employee replaced an employee aged 56 years. The court ruled the case based on the considerable age difference. Critics argue that there have been cases where HMOs have maintained one, two, five and seven year’s difference, which have passed as unreasonable age difference. Under ADEA, reasonable differences depend on the facts in the case, not years, an indication that the Supreme Court ruling is conflicting. This is what prompts them to say that the employment of this part of ADEA law depends on the HMOs evidence and the Supreme Court judgment, which is associated with the ADEA law. Strong evidence to sustain a HMO’s actions will render even a greater age difference invalid and vice versa. This shows that ADEA is a playing ground of HMOs having strong legal support, advisors or ‘connections’.
Potential Ramifications
If HMOs fail to comply with ADEA, they encounter numerous litigations and compulsory compensation. The plaintiff (client) has a right to sue HMOs. However, he/she has to provide factual proof that there is an ADEA case for the case to proceed. The client must provide evidence to prove that he/she is within the ADEA group, is qualified for the job tasks, is or has been under adverse HMO’s actions such as demotion, compulsory retirement or refusal to hire and an individual outside the protected age group has replaced him/her. If HMOs do not comply with the ADEA, employees can sue for damages. Gomez-Perez v. Potter (2008) case can ascertain this. The Supreme Court let the federal workers experiencing retaliation sue for damages. Where violation is willful (HMO knew or was reckless in addressing the matter), the plaintiff recovers the amount equivalent to the liquidate damages. For instance, the court may order a HMO to re-hire an individual dismissed from a job because of age or promote an individual denied promotion because of age. If reinstatement is not appropriate, the court orders a HMO to pay the future wages lost (Bell, 2011).
As Bell (2011) notes, the most appropriate defense and prevention mechanism for dealing with the arising ethical issues and litigations is evaluating the starting point of the ethical/litigation issues and taking actions before the issues develop into immitigable problems. Hence, for evaluation and prevention purposes, HMOs should come up with neutral policies that will provide guidance on how to deal with possible ethical/litigation issues and the merit/seniority by which they should treat all employees including the older employees. With consistent application of such policies, fairness will prevail and HMOs will make sound decisions that will mitigate litigation, enable them handle ethical issues and offer a practical defense if unavoidable litigation takes place.
References
Bell, M. P. (2011). Diversity in organizations. London, LND: Cengage Learning
Brody, R. (2005). Effectively managing human service organizations. London, LND: SAGE.
Perlmutter, F. D., Bailey, D., & Netting, F. E. (2001). Managing human resources in the human services: Supervisory challenges. London, LND: Oxford University Press.
Pynes, J. E. (2009). Human resources management for public and nonprofit organizations: A strategic approach. London, LND: John Wiley and Sons.