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Everyone is fine with music at work except for one older employee. Could he come at us for age discrimination?

  • Author: Lynne Curry
    | The Workplace
  • Updated: May 27, 2018
  • Published May 27, 2018

Q: We've gotten a complaint from one of our warehouse workers. "Steve" is older and works with a group of 20-somethings. They play loud rap music 10 hours a day. Steve says it's blowing his eardrums.

Here's the problem. The younger workers run circles around Steve and they insist the music helps them keep high energy all day long. If we tell Steve he's out of luck and that the music comes with the job, do we have an age discrimination problem? Steve is 55.

A: Potentially, and you may also have a National Institute for Occupational Safety and Health (NIOSH) or Occupational Safety and Health Administration (OSHA) problem. NIOSH and OSHA set limits on the permissible exposure limit for workplace noise. In 2017, U.S. employers paid $1.5 million in penalties to settle claims for not protecting workers from noise and another $242 million on workers' compensation hearing loss claims.

Depending on how loud the warehouse music is, you may be able to temporarily fix the problem by providing Steve with hearing protection equipment. You also, however, may need to run tests to assess the average decibel level your employees are exposing Steve and each other to, as it may be loud enough to cause hearing loss. Steve's brave enough to buck peer pressure to let you know the situation. What happens if you ignore him until he quits and the next employee puts up with it until he calls in OSHA?

Attorney Lee Holen "strongly advises you to test and evaluate the sound level issue before occupational safety organizations come in and do an investigation." If they do, you can't defend yourself by saying you didn't know a problem existed now that Steve has put you on notice. Holen urges you to "address this proactively rather than be ordered to do so, as violations could lead to fines and possibly other safety issues you are not even contemplating."

"This may also be a good time to have some workforce training on discrimination issues, including age discrimination," says Holen, given the age differential between Steve and the other employees. "You want your training to include a discussion and warnings about disparaging age, sex, disability and race remarks to be sure the employees are not saying things that could be considered discriminatory or harassing." Given the possible tension in the warehouse over music, both Steve and any of the younger employees could make age-discriminatory comments.

Q: Two days after I started a new job, my husband left me and I fell apart. I arrived late at work, cried during the work day and took personal phone calls from both my kids. I took my emotional upset out on others. In other words, I was a hot mess.

I've since pulled myself together, but not in time. This morning I was given a written reprimand and told that if repeat any of my problem behaviors, I'll be fired immediately. Here's what I need to know. Should I just resign and find a new job, where I don't have this history?

A: You can, and that might be your best alternative. You'd have a fresh start with a new employer.

Alternately, you can seize the opportunity your employer gave you. Here's what you need to consider.

One, your employer didn't fire you. In other words, you work for an employer who gives employees the benefit of the doubt or at least a second chance. That says a lot about your employer.

Two, you wanted this job. That means you assessed it, and while you could have waited for another job offer, something about this position and employer drew you. Do you want to start at ground zero again?

Three, we make a new history every day. While many say we have only one chance to make a first impression, if you immediately and consistently treat your coworkers and job with professionalism, you can create a fresh start where you are.

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