By Dan McCue
Staff Writer

As recently as a decade ago, thanks in equal parts to a surging economy, mandatory retirement laws and Social Security rules that allowed for a relatively early collection of benefits, aged workers were a small segment of the American labor force.

Today, however, as pensions evaporate and retirement credits for Social Security beneficiaries gradually increase, growing numbers of older workers are either remaining on the job or competing for openings in new employment settings.

What’s more, there are, and will be, more of these workers as the baby boomer generation continues to age into its seventh decade and beyond.

“Just as the baby boomers have had a dramatic impact on every stage of the American psyche as they’ve moved through the various decades of their lives, so too will they have a tremendous impact on employers and the nature of business as they move through the last 15 years of their working lives,” said attorney Michael J. Lotito of Jackson Lewis LLP in San Francisco.

So far, said Lotito, whose firm represents management exclusively in workplace law and related litigation, anecdotal information suggests that the baby boomer generation doesn’t have much inclination to retire, whether by choice or driven more by circumstance.

As a result, today’s Lowcountry employers need to be prepared to deal with age-related issues as they never have before, said employment law experts here in Charleston and across the country.

How employers handle these challenges will not only determine whether employees’ later working years are good ones, but also whether the business will become ensnarled in costly discrimination litigation.

How the law protects aging workers

Here in Charleston, two distinct laws protect workers against age-related discrimination.

The first, the federal Age Discrimination in Employment Act of 1967, prohibits arbitrary discrimination in the workplace based on age and applies to employers who have 20 or more employees.

In addition, the South Carolina Human Affairs law provides state protection for workers at least 40 years old.

Attorney Mary L. Hughes of Nexsen, Pruet, Adams & Kleemeier LLC in Charleston said, in light of the wide range of protected categories that now exist under federal and state civil rights laws, her office often sees age discrimination claims brought in conjunction with other claims, including disability, sex, race or national origin discrimination.

“Assuming the ADEA applies, the age discrimination cases we typically see involve employment issues with current employees, such as a discriminatory failure to promote claim or a discriminatory termination claim,” Hughes said.

According to the federal Equal Employment Opportunity Commission, these kinds of actions by an employer constitute “unequal” or “disparate” treatment, a form of age discrimination that inspires 17,000 to 19,000 complaints to the agency each year.

Recently, the U.S. Supreme Court held that age discrimination claims under the ADEA could also be based on a “disparate impact” theory.

In Smith v. City of Jackson, Mississippi, the High Court held that while the plaintiffs in the case—older city police officers—had not shown that a new pay raise policy intended to aid in the retention of younger officers was discriminatory on its face, the policy was discriminatory in practice because it meant the city gave proportionately higher raises to younger officers based solely on their age.

In order to establish a disparate impact claim, Associate Justice David Souter wrote, the aggrieved worker must show that while employment practices and criteria appear neutral in their treatment of different groups, they in fact fall more harshly on one group over another and cannot be justified by business necessity.

“In other words, you’ve got a seemingly neutral policy that’s had an unexpected consequence,” Lotito said.

“Now that doesn’t mean just because a policy has a disparate impact you lose” he continued. “The policy can still muster so long as you can articulate and document valid reasons why you did what you did.”

Dan McCue is a staff writer for the Business Journal. E-mail him at dmccue@charlestonbusiness.com.

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