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Think 76 is too old to work as a diesel mechanic? Think 60 is too old to teach English as a second language? Think again.

Recent Equal Employment Opportunity Commission settlements provide an important reminder to employers to judge employment candidates objectively.

In EEOC v. Southern Metals Co., Southern Metals agreed to settle an age discrimination claim based on its failure to hire a 76-year-old man as a diesel mechanic because of his age. The rejected candidate was fully qualified to perform the job; however, the employer told him they decided to hire someone “younger.”

Similarly, in EEOC v. Community College of Baltimore, the college failed to hire a 60-year-old employee for an open position as a part-time English as a Second Language adviser based on her age. The college was not only fined $50,000, but also was required to train its managers on age discrimination.

Employers not only need to be careful when hiring, but also must make sure to apply objective criteria when terminating employees. In particular, when older employees are replaced by younger employees, employers must be certain that the termination decisions are performance based or otherwise rationally tied to business needs.

For example, the EEOC recently entered into a consent decree with an Arizona company that required the payment of $250,000, based on the company’s termination of three employees over age 40. The consent decree was entered after the Ninth Circuit Court of Appeals reversed a summary judgment ruling for the employer on the grounds that the employees presented triable issue of fact with respect to whether their terminations were age-related.

Specifically, the court found that employees showed an inference of age discrimination because one older worker was replaced by an employee 15 years younger but without superior qualifications, and because the other two employees’ responsibilities were redistributed to employees more than 20 years younger than the terminated employees.

In addition, the court found that supervisors made comments from which a jury could find they harbored discriminatory animus toward older workers (the comments included referring to the employees as “old” and indicating that the job was a “young man’s game” and that the company needed “young blood”).

In 2008, there were 38.9 million Americans over the age of 65. By 2030, that number is expected to be 72.1 million, or 19 percent of the population. As a result, employers will increasingly face issues related to age discrimination and must be prepared to handle such issues.

Employers should review hiring criteria and job qualifications to ensure they are age-neutral and, as always, maintain current job performance information on all employees to substantiate termination decisions.

Employers also should train supervisors and managers to understand age discrimination laws and recognize that comments about age and retirement, even if innocent, can be evidence of age bias.

Elizabeth Semler is a member of Sussman Shank LLP’s business litigation group and chairwoman of its employment law group. Contact her at 503-227-1111 or [email protected].