If you’re worried about an employee’s health or safety in his current position, can you force the employee to work elsewhere?
Answer: Most likely not without some confirmation from a doctor that he’s a safety risk, or some evidence that he’s not performing his job duties — at least not if you want to avoid an age discrimination lawsuit.
This topic comes to us all the way from Edith Cowan University in Australia. The university just took an office away from David Goodall, a 102-year-old ecologist and honorary research associate, because it doesn’t want him commuting to work anymore.
The university said he can still work from home, and that it would make travel arrangements at no cost to Goodall for him to attend pre-arranged meetings and events, according to a report by TEN Eyewitness News in Australia.
University officials say there are risks associated with Goodall’s 90-minute commute, for which he catches two buses and a train. They also cited concerns with his general well-being when describing why the university is moving him out of his office.
The report by TEN Eyewitness News didn’t mention that the university felt Goodall was a safety threat or that he was under-performing in some way.
Move wouldn’t fly here
Without evidence of either, the university’s move would likely be deemed illegal here in the U.S. (we’re not sure what the law in Australia says).
As a result, Goodall’s story is a good reminder that employers in the U.S. can’t take adverse actions against workers due to protected characteristics (e.g., age), even if they think it’s for an employee’s own good.
More specifically, here’s what the EEOC says:
“Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited.”
That language comes straight out of an EEOC enforcement guidance document covering the Pregnancy Discrimination Act, but it applies to other federal statutes as well.
The EEOC says any adverse action based on an assumption or stereotype — even in regards to a worker’s attendance, schedules, physical ability to work or commitment to his or her job — is unlawful.
In other words, unless an employee like Goodall becomes a safety risk or can no longer perform his or her job duties, his employer can’t decide he’s too old to be commuting — at least not here in the U.S.
Whether or not a lawsuit in Goodall’s case is forthcoming is anyone’s guess, but his daughter certainly wasn’t happy about the situation. She said she was “appalled” and called it the worst thing the university could do.