Is Age 70 Too Old to be a Pharmacist

Occasionally we write about significant cases or situations that do not directly relate to workers compensation, and this is one of those issues. We do this because those of us handling workers compensation need to be aware of human resource and employment issues from a macro level.

Kmart Corporation will pay $120,000 and furnish other relief to settle an age harassment, constructive discharge and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC charged Kmart discriminated against a 70-year-old pharmacist at a Honolulu store.

According to the EEOC’s suit, over the course of four years, a pharmacy manager openly said on several occasions the pharmacist was “too old,” “should just retire,” and was “greedy” for continuing to work at age 70. Further, the EEOC said, the manager continued to humiliate her in writing by stating, “The pharmacy is no longer your forte.” and “You need to retire from pharmacy work now.” in a communication book open to the entire department.

The manager also purposely scheduled her to work on Sundays – knowing she attended church those days – to encourage her to quit, the EEOC said. The agency further contended the victim complained to a district manager, general manager and human resources manager regarding the age-based harassment, to no avail.

Further, the EEOC charged, Kmart threatened legal action against the pharmacist using a pretext on an unrelated matter to retaliate against her for her discrimination complaint. Finally, the EEOC said, she quit to escape the mistreatment.

In June 2009, the EEOC filed its lawsuit in U.S. District Court, District of Hawaii (EEOC v. Kmart Corporation, et al., Case No. CV09-00300 SOM BMK), claiming Kmart failed to take remedial action, forcing the pharmacist to resign. The EEOC argued the harassment and Kmart’s failure to address it adequately were in direct violation of the Age Discrimination in Employment Act (ADEA).

“Instead of addressing this pharmacist’s legitimate complaints of age discrimination, Kmart made a bad situation worse by threatening her for complaining,” said EEOC Acting Chairman Stuart J. Ishimaru. “Such retaliation only compounds an employer’s culpability.”

In cooperation with the EEOC, Kmart entered into a three-year consent decree stipulating Kmart post a notice on the matter; hire an EEOC trainer; review and revise its existing anti-discrimination policy; provide annual ADEA training to all staff; and ensure performance evaluations reflect discriminatory misconduct by management staff.

“Older workers should be valued for their experience, not viewed as a liability,” said Anna Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii in its jurisdiction. “Under no circumstances will the EEOC tolerate employers pushing out their older workers simply because of age. The EEOC forcefully protects people against this kind of age-based discrimination.”(workersxzcompxzkit)

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Employers should handle complaints of discrimination, including harassment, in an expeditious manner. Training on a company’s EEOC policies should occur periodically, and if someone if found to be in violation, appropriate disciplinary action should be taken immediately.”

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