A Gallup poll from May 2016 found 31% of non-retired workers plan to be employed until they are 68 or older. Those who consider themselves Baby Boomers or Gen Xers see themselves working past the traditional age of retirement. With advances in health care and people generally taking better care of themselves, most adults are living longer, more active lives. Couple that with the Great Recession (2007-2012) and many adults from those generations are also playing catch-up with their finances and careers. With an increasingly aging workforce, age discrimination claims have increased in the last decade and currently make up 22% of the discrimination claims filed with the US Equal Employment Opportunity Commission.
The Age Discrimination in Employment Act was passed in 1967 in order to protect workers or those seeking jobs who are 40 years of age or over from facing any age-based discrimination in hiring and in all other aspects of employment, including raises, promotions, and benefits. Most employers are well aware of the big and obvious behaviors that can be construed as discrimination. But there are often subtle ways that age discrimination inserts itself into the workplace in hiring, employee management, and workplace environment.
Recruiting: Everyone involved in the hiring process, whether they are internal or a third party recruiter, must be knowledgeable about age discrimination. In a 2001 case, Mathis v. Phillips Chevrolet, the court ruled that a failure to properly train employees on discrimination in hiring makes employers liable for any resulting claims.
Age discrimination can show itself in the first step of the hiring process, placing the ad. Can the language used be construed as discriminatory? It’s advisable to avoid using language that may discourage people from applying based on age. Phrases like “young and energetic”, “digital native”, “ninja”, or “guru” can be perceived as showing bias to a younger hire. Focus job ads on the qualifications needed and the responsibilities of the job.
During the interview process, be careful to avoid questions that allow you to guess a person’s age such as “When did you graduate college?” Rejecting a candidate by terming them “overqualified” can sometimes be construed as a code word for “too old”. Blatantly hiring a younger, less qualified applicant over an older, qualified candidate would certainly open the company up to an age discrimination claim.
Employee Management: It is crucial to have procedures in place for employee management so that a current employee does not feel discriminated against due to age. Performance reviews and evaluations, as well as the correction of any performance deficiencies should be performed regularly and properly documented. An employee who hasn’t received regular feedback may all of a sudden feel that any current criticism, disciplinary action, lack of wage increase or bonuses, or termination is a reflection on their age whether or not true performance issues exist.
Be sure that all employees are encouraged to update their skills and training. Don't discourage older workers from doing so because of assumptions that they won’t care or are close to retirement and it won’t matter anyway.
Workplace Environment: Bias and discrimination against gender or race are usually very easily recognized and called out quickly. However, jokes or banter along the lines of “you can’t teach an old dog new tricks” are often laughed at and tolerated. Attitudes like this directed at employees older than 40 can be seen as harassment. Also, do current employees see a pattern of hiring only younger workers? Are older workers encouraged or forced into retirement? These are just a few of the issues to consider.
Again, in all these areas, words matter. Some terms to be avoided are “young blood”, “young and dynamic company”, “energetic”, and “vibrant“.
While the ADEA sets forth the law on a federal level, each state can also have their own laws regarding age discrimination. For example, the ADEA is applied to employers with more than 20 employees. However, most state laws are stricter and will apply to companies with less employees. A complete understanding of federal and state law coupled with consistent policies and procedures can help avoid any accusations of age related discrimination.
If this is an area that you need more information about, feel free to contact us here at De Novo HRC at 610-340-1170 x 105.