Dive Brief:

• The manager of legal and corporate affairs for the parent company of Carter's and OshKosh B'Gosh children's clothing was not promoted because of her age and gender, the worker said in a recently filed lawsuit (Goodwin v. The William Carter Company, No. 1:21-cv-01159 (N.D. Ga., March 22, 2021)).
• The plaintiff contended that in spite of a steady increase of responsibilities she was not given the proper job classification and compensation. She said the company's general counsel acknowledged that she was qualified for a promotion to director but told her that "at her age" it would not be beneficial for her to be granted the restricted stock or stock options that come with the job because she didn't have enough time left in her career for the stocks' value to significantly increase. The plaintiff said several younger men in the legal department were promoted to a higher position and pay grade. She alleged age and sex discrimination under federal law.
• The William Carter Co. did not return a request for comment by press time.

Dive Insight:

Even though the Age Discrimination in Employment Act has been around for years, age bias and stereotyping are still being seen in the workplace. Cathy Ventrell-Monsees, then-senior U.S. Equal Employment Opportunity Commission advisor, previously told HR Dive that age discrimination is an "open secret" in the workplace because it is so common and so accepted. Older workers report continuing difficulties in getting hired even during times of strong employment.

The ADEA protects employees age 40 and older against workplace discrimination. The federal law prohibits "discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment," according to the EEOC. State laws might also apply.

Still, if an employee does have legally protected status, a clear failure to properly execute key functions of a job will generally serve as a reasonable basis for discipline, assuming employees without protected characteristics suffer the same consequences for similar offenses.

The 3rd Circuit said in a 2019 ruling that a record "overwhelmingly" supported an employer's decision for terminating an older worker because he failed to perform an essential function of his job when the network administrator failed to maintain a data backup which caused his employer to permanently lose important data. In such situations, employers should document the nondiscriminatory reasons for adverse employment actions, experts say.