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Mhlnews 11448 Age Discrimination

Despite Laws Against It, Age Discrimination Persists

Aug. 21, 2019
With older employees working beyond traditional retirement age, employers must avoid stereotyping.

The aging of today’s workforce makes it more important than ever that employers guard against age discrimination, which is a prime target for the Equal Employment Opportunity Commission (EEOC). In 2016 alone, 20,857 age complaints were filed with the commission.

In 2017, EEOC—marking the 50th anniversary of the Age Discrimination in Employment Act (ADEA)—announced that “persistent age discrimination and stereotypes about older workers continue to channel older workers out of the workforce, limiting further economic growth. With so many more people working and living longer, we can’t afford to allow age discrimination to waste the knowledge, skills and talent of older workers.”

The ADEA prohibits age discrimination against people who are 40 or older in hiring, firing, pay, benefits, job assignments, promotions and training. Also banned are all kinds of harassment because of age, including offensive or derogatory remarks. The law holds that the harasser can be the victim’s supervisor, co-worker and even someone who is not a fellow employee, such as a client or customer.

Employers should make sure they have updated policies and procedures in place to prevent age discrimination in the workplace and in their hiring practices, stresses Michael C. Fallings, an attorney with the law firm of Tully Rinckey. He reminds employers that they cannot discuss age or specify that a particular age is preferred in job ads and recruiting materials; establish age limits for training programs; or force an employee to retire at a certain age (with certain exceptions).

There appears to be a real need for this warning. While the labor force as a whole is projected to grow by an average of just 0.6% annually between 2016 and 2026, the number of workers age 65 to 74 is seen growing by 4.2% each year, and the number of workers ages 75 and above is projected to grow by 6.7% annually, according to a congressional report.

“These workforce changes are occurring at the same time as technological advancements are transforming the workplace. Unfortunately, age-stereotypes can lead some to see these trends as in conflict,” observe Seyfarth Shaw attorneys Andrew Scroggins, Robert Szyba and Ryan Schneider.

Some too-common assumptions are that older workers lack stamina, are not technologically savvy and want to slow down. A recent survey found that 41% of companies worldwide considered their aging workforces a competitive disadvantage.

Positive stereotyping of younger employees is growing among employers as well. Terms commonly used today to delineate job requirements include “digital natives,” “competitive,” “determined,” “energetic” and “innovative.” At the same time, calls for experienced employees are waning. This trending vocabulary seen in some of today’s recruitment efforts can be viewed as code for “young,” notes the Society for Human Resources Management.

Scroggins, Szyba and Schneider advise employers to organize their recruitment efforts based on more objective qualifications. “Job openings should focus on the skills that are required for the role—not the person the employer thinks is most likely to have those skills.”

Images can be every bit as powerful as text when it comes to sending messages about employment, they warn. Websites and all kinds of recruiting materials should reflect diversity and inclusion efforts, and this includes depicting those in older age groups along with younger people.

Research suggests that older workers have a positive attitude toward changing technology and failing to take this into account can actually hurt employers, the three lawyers point out.

“Inhibiting this enthusiasm with age-related stereotypes is counterproductive. Employers who have identified skill gaps in their applicant pools or workforces should increase their training efforts, including training for their older employees, communicate the importance of skills the training will provide, and carefully choose customizable programs that avoid assuming employees of a given age possess or lack certain skills.”

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