GovernmentExecutive.com

The aging federal workforce is a hot topic, but much of that discussion focuses on recruiting and retaining the next generation of younger employees. Recently, however, the treatment of older federal workers has generated more interest as a result of a Supreme Court decision and a proposed change by the executive branch to the standard for determining age discrimination.

In Gomez-Perez v. Potter, Postmaster General, the Supreme Court ruled 6-3, on May 27, that federal employees could sue their agencies if they were retaliated against for complaining about age discrimination. That decision, written by Justice Samuel Alito with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas dissenting, expanded the scope of the 1967 Age Discrimination in Employment Act. The Bush administration had argued that Congress intended for the Civil Service Commission to handle retaliation claims as a category distinct from discrimination charges.

At the time, National Treasury Employees Union President Colleen M. Kelley praised the decision, calling it "a very welcome departure from a court that is often conservative with respect to federal employee rights." She said recognizing that retaliation was a form of discrimination -- which the majority in Gomez did -- as opposed to a separate offense, gave workers firmer ground to stand on when they file discrimination claims.

While Gomez expanded older federal employees' rights to fight retaliation, a proposed standard for proving age discrimination could set a higher threshold for demonstrating that discrimination occurred in the first place.

On May 30, the comment period ended for a proposed Equal Employment Opportunity Commission rule that would set up a new test for determining whether age discrimination occurred. That draft rule was inspired by the 2005 Supreme Court decision Smith v. City of Jackson. Currently, employers can adopt policies that have an effect on the members of one age group more than another on the grounds of "business necessity" as long as that policy limits its impact on the affected age group as much as possible.

The proposal would require an employer to demonstrate that a practice was based on a "reasonable factor other than age." That standard places the burden of proof on employees to identify the practice that produces the discriminatory effect, but also requires the employer to demonstrate that factors other than age prompted the practice.

EEOC has not decided yet whether to adopt the rule.

NTEU submitted comments on the proposed regulation, arguing that "a practice which discriminates against older employees must be objectively reasonable when viewed from the standpoint of a reasonable employer," and must be aimed at meeting a legitimate business need.

In particular, NTEU called attention to the need for sensitivity regarding age in pay decisions. The union won an arbitration decision striking down the Securities and Exchange Commission's pay-for-performance system last September on the grounds that the system adversely affected employees age 40 and older.

"The employer must show that managers responsible for making pay decisions have received adequate training and guidance on the application of subjective standards," the union wrote.

COMMENTS

• I too am a 50+ female government employee, who has 30+ years with the Federal Government. I truly was amazed at the difference in how I was treated when I reached this age. It didn't happen over night, and it took a while for it to sink in. I think I will scream if one more person asks me, "well, how much longer do you have to go?" I am sure due to the focus on recruitment and retention there are employees who are being given indepth information of where our organization is going, what education is needed, what courses to take, and certain employees are being groomed for positions, but what is happening is very subtle and maybe it is only because of the individuals I work for, don't know if it is widespread, but it has been very discouraging to me. It has taken me many years to get to the position I hold, love what I do, gladly work 8+ hours a day and love being engaged in what I do, but no matter what type of person you are, after a while, not being privy to information that others are provided just takes a toll on your outlook. I don't know why it is automatically assumed that because you are close to the age of retirement, that you have no interest in being a contributing member of your organization or no interest in being actively involved in future plans and goals. It seems to me that we are all just being placed in the same category - employees who are biding their time until they can retire, but unfortunately, I am not one of them. Sue Posted October 4, 2008 9:41 AM
• I started as a government employee over 30 years and I didn't really think there was much discrimination; however it didn't take too long to find out otherwise. The Discrimination list includes: (1) being female, (2) working in a predominatedly female job, (3) working while trying to raise children instead of staying at home, (4) not having a college degree, and (5) giving my family priority over moving around the United States for more money. I've got many years of experience, lots of on-the-job & class room training, good work ethics and have never received an objectionable performance. However, I have found myself working in a similar position that I started in 30 years ago because of the continuing discrimination of women & the positions they held in the Government workforce. When the downsizing of the Government workforce began, where did it start? In the support services areas where the majority of women worked. The X-188 classification standards also changed; instead of substituting education for basic experience, a college degree (in any field of study) is required to hold a GS-9 position regardless of specialized experience. However, this only pertains to fields of work that women predominately held in the past; the "professional" fields still maintain that they need specialized experience, and education can only be substituted for the basic qualifications starting out. Now that I'm over 50, age discrimination has been added to the above list. The only changes seen are women working in men's positions - they at least are getting equal pay. [Good for them!!] The men working in women's positions don't stick around long - they burn out fast and quit(unless they can use workforce diversity to get management to change their job series). It doesn't work for women however because they're just being sensitive or can't handle the stress. No Name Posted June 15, 2008 8:01 PM
• The Office of the Comptroller of the Currency (OCC) is about to experience the same fate as the SEC on its pay-for-performance system. Rooster II Posted June 9, 2008 2:00 PM