The reality is that laying employees off because they are expensive, inflexible, or resist retraining are still, and likely will always be, lawful reasons to let people go. And if the company can prove these problems exist and their need to control it, they will win.
Of course many employers don't do their homework before conducting layoffs, sometimes because they are, in fact, discriminatory and just want to get rid of older employees. Or more likely, are sloppy, have poor managers, and in their eagerness to cut costs, cut good, older workers who actually make the company's business succeed.
I've seen these employer mistakes several times and had a feeling of deja vu when I read in the facts of the recent Supreme Court case, "Managers were instructed to rate employees for how “flexible” and “retrainable” they were." Sometimes these are code words for discrimination. But what if there truly was a problem with inflexible or untrainable employees?
Although this is not a fact in this particular case, what if some employees refused to learn a new software program? Like Microsoft Office? Don't laugh, I've seen a few people like that in my legal career. Unfortunately, some people decide to not make an effort in their work - and regardless of their age, that will spell doom for their employment future.
Having seen both good and bad employers and employees, I can say the following remains true:
If you have skills in demand, do them well, and are pleasant to work with, you do not need to worry about your future. Even if you encounter a bad or discriminatory boss (it is not always easy to distinguish between them), you can get a job somewhere else.Would you rather be fighting battles over whether an employer is discriminatory or in a satisfying career supporting yourself and your family? Start picking your path now so if you are the victim of a layoff, discriminatory or otherwise, you will have options.