Here’s an understatement for you: Today’s workforce is not what it used to be. In just the last few decades, employers have seen dizzying change brought on by advances in technology and shifting workforce demographics. Among the most significant factors altering the employment landscape: an aging workforce.
Information from the U.S. Bureau of Labor Statistics shows that the segment of the workforce made up of workers 65 and older is expected to grow faster than other age groups through 2024.
Those increasing numbers of older workers present both “unprecedented challenges and untapped opportunities,” according to the recently released 2018 Global Human Capital Trends report from Deloitte. “Companies that plan, design, and experiment with workforce strategies, workplace policies, and management approaches for longer working lives can reap a longevity dividend,” the report states. “Those that lag behind face potential liability concerns and skill gaps.”
Those potential liability concerns center on age discrimination. The Equal Employment Opportunity Commission (EEOC) released a report in June marking the 50th anniversary of the Age Discrimination in Employment Act (ADEA), the law that makes discrimination based on age over 40 unlawful. The report’s conclusion notes significant progress over the last 50 years but also says that “age discrimination persists based on outdated and unfounded assumptions about older workers, aging and discrimination.”
“Ability, experience and commitment matter, not age,” the report states. “To achieve the promise of the ADEA, it’s time to recognize the value of age diversity in the workplace and the benefits of a multi-generational workforce.”
The report also details the legal risks of age discrimination, pointing out that unlawful discharge is a common practice asserted in discrimination claims going to the EEOC, as well as charges related to harassment and terms and conditions of employment. Discrimination in hiring also is a common problem, the EEOC report says.
Identifying and Minimizing Risks
With discrimination in all facets of employment still an issue, employers need to understand and minimize their legal risk. One risk involves the relatively new practice of “microtargeting” on social media—the practice of directing posts about employment opportunities to certain demographics, such as younger workers.
That practice presents a significant risk to employers, according to H. Juanita Beecher, an attorney with the Fortney & Scott, LLC law firm in Washington, D.C. She points to a lawsuit filed in December against companies that used Facebook’s ability to target younger workers—big-name companies, including Amazon.com, Inc.; Cox Media Group; Cox Communications, Inc.; and T-Mobile.
Jodi R. Bohr, an attorney with Gallagher & Kennedy, P.A. in Phoenix, Arizona, says that although microtargeting hasn’t yet been expressly condemned by the courts, it may prove to be “a form of digital age discrimination” if the employer isn’t also posting similar ads in other media outlets reaching the older age demographic.
Bohr says the courts will likely provide an answer soon on the legality of microtargeting since the companies named in the lawsuit are defending their use of the practice, and she expects the courts will favor the employees’ claims against it.
But avoiding the dangers of microtargeting is just one way to prevent age discrimination. Beecher points out that the EEOC strongly recommends that employers add age to their diversity and inclusion programs, and they also should add discussion on harassment based on age to their harassment training programs. Those practices can hold down the risk of an employer getting hit with common age discrimination charges, such as unlawful discharge, harassment, and discrimination in terms and conditions of employment.
Employers also need to pay close attention to their hiring practices. “Make sure that hiring managers and recruiters understand that they cannot discriminate based on age and make sure job ads are not targeting to certain groups by age,” Beecher says. She also warns against seeking information from applicants that can reveal age, such as asking for college graduation dates.
“My bottom line advice to employers is that they need to be as conscious of age discrimination in employment practices as they are of race and gender discrimination,” Beecher says. They especially need to make sure their recruiting branches out beyond social media, since ads on Facebook and other social media outlets may focus on younger applicants.
Bohr agrees that employers need to review their hiring practices and policies to make sure they aren’t engaging in inadvertent age discrimination. Practices such as placing a cap on an applicant’s experience level (“candidates must have 3–5 years’ experience”) are problematic.
“By including a top experience range, interested candidates with more experience (read older) may be discouraged from applying despite being enticed by the company and posted salary level,” Bohr says. Instead, an ad should just state a minimum experience level, such as “candidates must have 3+ years’ experience.”
“Another risky hiring practice is limiting recruiting sources to college campuses,” Bohr says. “Doing so generally limits the candidate pool to younger applicants, thereby excluding candidates with work experience seeking to make a career change.”