Due to longer life spans, economic conditions and societal changes, employers are facing an increasing number of employees who wish to continue working well after typical retirement age. In most cases, these older workers provide valuable experience, institutional knowledge and work ethics that make their continuing presence in the workplace valuable to their employers. However in some situations, the normal effects of aging cause problems with work performance that require corrective action or even termination of employment.

In an unpublished decision issued last month, the Third Circuit Court of Appeals refused to consider termination based on apparent age-related conditions to be illegal age discrimination. Ball v. Einstein Community Health Associates, Inc. involved a 73-year-old physician whose contract was not renewed by the practice following audits uncovering a series of administrative and patient care issues. These issues included low work productivity, mobility problems relating to a nervous system disorder, problems with billing code use and clinical documentation, and over-prescription of narcotics to patients. As a result of the termination, the physician sued the practice alleging age and disability discrimination.

The Third Circuit affirmed dismissal of the complaint. The court concluded that the business reasons provided for the termination were legitimate, and were not a pretext to terminate the plaintiff because of his age or medical condition. The employer was able to demonstrate that younger physicians were subjected to the same audit and review procedures, and that similar action was taken when discrepancies were discovered.

In many situations, older workers claim that employers use stereotypical notions about their inability to adapt to change and new technologies as the basis for employment decisions based on age. These criteria can be legitimate grounds for disciplinary action regardless of their possible association with this stereotype, if the employer can demonstrate consistent application of its performance criteria. In addition, performance problems caused by the aging process do not have to be ignored by employers. The underlying medical condition may require accommodation efforts under the ADA, but the employee must demonstrate his or her ability to perform the essential functions of the job regardless of their age.

Obviously, employers need to be careful when reviewing and documenting performance issues involving employees of an advanced age. Any material decision regarding their employment status should not be made without thorough legal and human resource review and approval.