Advocacy group AARP recently declared in a headline in its AARP Bulletin, “It’s time to end the last acceptable bias,” referring to age discrimination in the workplace.
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In June 2018, the Equal Employment Opportunity Commission (EEOC) marked the 50th anniversary of the federal Age Discrimination in Employment Act (ADEA) with a report claiming that age discrimination “remains too common and too accepted.” The report backed up that assertion by saying its research found 6 out of 10 older workers had seen or experienced age discrimination in the workplace, and 90% of those said it was common.
More recently, the U.S. House of Representatives addressed the issue by giving attention to the Protecting Older Workers Against Discrimination Act, which aims to amend the ADEA to make it more effective in stopping workplace age discrimination.
All the recent attention given to the issue should be a strong signal to employers that the common—and, in some circles, even “acceptable”—bias finally may be becoming taboo.
Language Problem
Even though examples of discrimination against older workers and applicants are easy to find, the practice is illegal. But illegal can be hard to prove, and laws against age discrimination are often ignored. Managers and supervisors may be aware of the ADEA, as well as various state laws prohibiting discrimination based on age, but the legal risks may not be top of mind when they’re considering applicants and evaluating job performance.
The ADEA, which protects employees and applicants aged 40 and older, prohibits age-based discrimination in employment and applies to employers with 20 or more employees. Guidance from the EEOC says using phrases such as “recent college graduates” in job advertisements may discourage older applicants from applying for a position and therefore may violate the law.
Such guidance doesn’t discourage many employers from using those and similar phrases, though. The AARP reported in its January/February 2020 AARP Bulletin that it found thousands of examples of age-related phrases in job advertisements on LinkedIn, Indeed.com, and Monster.com. The AARP Bulletin article says that during the organization’s investigation, it found 4,749 jobs with the term “recent college graduate” on LinkedIn, 1,124 on Indeed, and 513 on Monster.
Sometimes, employer age references are more blatant than phrases like “recent college graduate.” In 2007, Facebook founder and CEO Mark Zuckerberg raised a furor when he was quoted as saying, “I want to stress the importance of being young and technical. Young people are just smarter.” He was 22 at the time and was speaking at a gathering of entrepreneurs at Stanford University.
The fallout from the quote was immense and contributed to suspicions that Silicon Valley is afflicted with a harmful youth culture. Since then, the tech sector’s lack of diversity in terms of age and other characteristics has continued to be in the spotlight.
Legal Risks
Individuals who believe they’re victims of age discrimination may have a hard time convincing juries they were passed over or mistreated on the job because of age and not some other reason such as a lack of qualifications or poor job performance.
But employers are wise to remember that mandatory back pay awards can be “quite substantial,” Jonathan Mook and Colete Fontenot of DimuroGinsberg P.C. in Alexandria, Virginia, said in an article in the January 2020 issue of the Virginia Employment Law Letter—which is now the Mid-Atlantic Employment Law Letter.
The article includes the following steps employers can take to avoid paying large back pay awards:
- Encourage employees to report anything they consider to be age discrimination at the time it happens, and move quickly to resolve any complaints that have merit.
- Review your personnel policies to ensure there’s no “systemic” age discrimination written into your guidelines, benefits, or compensation.
- Finally, be sure to talk with your older employees and let them know they are valued members of your organization and they should tell you if they feel they aren’t being treated fairly.
“The best way to avoid claims of age discrimination, or any other type of workplace discrimination, is to work with your employees to resolve any problems they identify. That way, there’s no need for anyone to file an EEOC charge or pursue a discrimination claim against you in court,” the article states.
Richard Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina, has predicted age-related claims will increase in the coming years. In an article in the November 2019 issue of the North Carolina Employment Law Letter—which is now the Midsouth Employment Law Letter, Rainey pointed to information from the U.S. Bureau of Labor Statistics indicating that 25% of the American workforce will be 55 or older by 2024, and nearly 10% of workers will be 65 or older.
Rainey suggests employers give careful thought to how they will respond to an aging workforce. “Your assessment should cover a lot of ground, including recruiting, succession planning, worker retraining, and increased benefit costs,” he wrote.