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  • CT-age & ability to perform Connecticut

    I’m an HR mgr for a CT company w. approx. 90 employees.

    We have an employee who has been w. us for 27 years and is 68 yrs old. He’s been in a manual warehouse position during his entire tenure. Recently he has been unable to perform the full scope of his position. He has difficulty lifting boxes and climbing ladders. His manager has tried to work around this (small company loyalty) and his coworkers have stepped in to cover his deficiencies.

    Due to the economic downturn and business conditions, we have reduced our staff through attrition. While the warehouse theoretically has enough man-hours to operate, this one employee can not “carry his weight” and there are no longer enough others to cover. His manager is also concerned if this employee is pushed to keep up with expectations that he will injure himself.

    Unfortunately, we do not have another position more suitable for this employee. The manager is frustrated, the owner is frustrated.

    I’m looking for options that don’t have me stepping in an age discrimination landmine. Any ideas?

    Thanks.

  • #2
    You can't discriminate against an employee due to their age but they still have to be able to perform their job duties like any other employee. If you don't have another position the employee can do, you can terminate or in this case can you offer retirement? It seems you tried to work around this but that is no longer possible/not working out. You apparently did all you could do.

    You can check back for possible other replies.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

    Comment


    • #3
      Betty,

      What about a simple BFOQ for this position, regardless of age, sex, religion if he is unable to fulfill the bonafide occupational qualifications then he can be terminated without fear of the company discriminating against him.

      I go back to a story I have told before in which an employer of mine (upholstery warehouse) hired an employee who was color blind, she simply forgot to ask him. Once discovered she let him go because being able to see and differentiate colors was a BFOQ.
      Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

      I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

      Comment


      • #4
        You couldn't not hire a person or terminate them just because of their age if they could meet the BFOQ. However; since in this case he can no longer do the job (meet the qualifications), I don't see a problem with letting him go. You're not letting him go because of his age but because he can't do the job.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

        Comment


        • #5
          I had some questions

          Recently he has been unable to perform the full scope of his position.
          You did not list any? You only said he has difficulty lifting boxes and climbing ladders not that he was unable to do it?

          Also how much do these boxes weight? When climbing a ladder is the ladder attached / mounted to something or does it need another person to hold it?
          (both could be OSHA problems)


          But while you still could let him go, why not manage the processes of the job better, and give respect to workers that have given your company there time instead of fireing them when I am sure you can find other cost saveings.

          I think by getting rid of him you are showing other workers that they mean nothing to the company. They work for the company, the company should work for them too.
          Pigz


          You couldn't not hire a person or terminate them just because of their age if they could meet the BFOQ.
          Soo your saying you can hire/terminate them because of there age!
          Last edited by pigz; 02-24-2010, 12:28 AM.

          Comment


          • #6
            Originally posted by pigz View Post
            Soo your saying you can hire/terminate them because of there age!
            Let's take age 68 as in this case --their age is in a protected category
            I was saying you *couldn't* not hire them & you *couldn't* terminate them *just* because of their age. However, you don't have to hire them because of their age if they can't meet the qualifications of the job (or someone else is more qualified for example). You can also terminate them in spite of their age if they can no longer meet the qualifications of the job/can no longer do their job.

            If they can meet the BFOQ for the job, you can't not hire them *just* because of their age but you could not hire them for another reason (ie another applicant did better on pre-employment tests). You can't terminate them if they meet the BFOQ *just* because of their age but you can terminate them if they no longer can meet the qualifications or for another reason (poor attendance for example).
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

            Comment


            • #7
              lol, I was just pointing out double neg

              *couldn't* not = could

              Comment


              • #8
                Originally posted by pigz View Post
                lol, I was just pointing out double neg

                *couldn't* not = could

                However, this is also the person who can't spell unemployment.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment


                • #9
                  Thanks for all your replies.

                  I’m a little confused on the BFOQ - I thought a BFOQ was only used to support the exclusion of a protected group. I will look into it.

                  We don't have issues with the employee being 68. We have issues that our workforce has shrunk out of necessity (company survival at this point) and it is harder to accomplish what work there is with an employee that can't perform at 100%. We’re talking small warehouse staff. Sometimes only 2 or 3 ppl on a shift.

                  In response to pigz – we are trying to respect this employee’s 27 years of service. This has been why his manager and the rest of the employees have been working around him. His manager doesn’t want to discipline him (what a way to have your career end) or put him in a position where he will get injured. That’s the whole rub! And lifting boxes and climbing ladders (yes, they are attached) are an integral part of what these guys do every day – they unload trucks, put stock away and pick orders. That’s the job.

                  Comment


                  • #10
                    Originally posted by Pattymd View Post
                    However, this is also the person who can't spell unemployment.
                    That's not the only thing they couldn't spell.
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                    Comment


                    • #11
                      Originally posted by CThrmgr View Post
                      I’m a little confused on the BFOQ - I thought a BFOQ was only used to support the exclusion of a protected group. I will look into it.

                      We don't have issues with the employee being 68. We have issues that our workforce has shrunk out of necessity (company survival at this point) and it is harder to accomplish what work there is with an employee that can't perform at 100%. We’re talking small warehouse staff. Sometimes only 2 or 3 ppl on a shift.

                      In response to pigz – we are trying to respect this employee’s 27 years of service. This has been why his manager and the rest of the employees have been working around him. His manager doesn’t want to discipline him (what a way to have your career end) or put him in a position where he will get injured. That’s the whole rub! And lifting boxes and climbing ladders (yes, they are attached) are an integral part of what these guys do every day – they unload trucks, put stock away and pick orders. That’s the job.
                      Let's just forget about the BFOQ. I see no problem with you letting the employee go if they can no longer do the job. That is why you are letting them go & that is legal. You are not letting them go because of their age. It seems to me you did everything you could to try & keep the employee but it is just not possible.
                      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                      Comment


                      • #12
                        FYI - age (over 40) is a protected group.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                        Comment


                        • #13
                          Just to clarify, federal & most states the law is 40 & older though a few states (not Ct) the protected age law is different (ie 18 & older). However, if they are 40 or older, they are going to be protected from discrimination.
                          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                          Comment

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