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Take care of your people and protect your business

“Over the hill” plastered on black balloons alongside a matching cake in a company break room for a colleague’s 60th birthday. The new software training is optional, but only younger workers are signing up for it. Your recruiter consistently offers you younger workers to interview for a senior-level management position and you notice your company tends to promote younger workers at a rate that far exceeds that of older workers. Should you be concerned? Could these be signs of age discrimination? Read on to learn more.

What Is Age Discrimination?

Age discrimination is the unfair treatment of an employee based on age rather than merit or capability. Age discrimination can be the basis for judging employees to be unqualified for a role based on being “too young,” “too old” or part of a less desirable age group.

Examples of Age Discrimination

Age discrimination can be subtle or overt, intended or unintended, but always harmful. Here are a few examples to watch out for:

Receiving Disparaging Remarks

Receiving disparaging remarks can include an employee being told that they are “too old” to do or learn something. Comments can range from being intended or delivered as a joke or being confrontational and aggressive. A comment like, “you’re too young to have this role,” used as the basis for employment decisions can be considered discriminatory.

Opportunities Going to Younger Employees

Employers may offer chances to work on new projects or gain exposure to new technologies to younger, less experienced workers over older and more experienced workers. Employers who target a certain age group to hire, promote or train for advancement may be at risk for an age discrimination claim.

Inequality of Job Benefits

If there is age discrimination, the scope of benefits can favor younger workers or even be withheld from older workers, including the amount of benefits, wages, insurance coverage, and eligibility for leave.

Refusals to Grant Salary Increases or Promotions

“Redlining” is a process of freezing an employee’s wages when they exceed the maximum threshold for a given job. Typically this will have a greater impact on workers who remain in one role for several years. This can be compounded when older workers are not offered promotional opportunities to grow their salary along with their experience.

Unjustified Forced Retirement

Certain jobs (like pilot or firefighter) have a mandatory retirement age. This is tied to safety and has been deemed as legal. Employers risk exposure to age discrimination claims when age is used as the reason for ending an employee’s tenure through either workforce reduction or simple termination.

Age Discrimination Laws You Should Know

In the 1960s, civil rights legislation flourished. Discrimination was finally starting to be defined, given parameters, and made illegal. Age should not be a factor in determining a person’s capability to perform a job. Several laws have been established to prevent age discrimination. Let’s review some.

The Age Discrimination Act of 1967

According to the Department of Labor:

The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

This applies to employers who have 20 or more employees. Damages could include reinstatement, back wages, and/or penalties. Employees under the age of 40 are not covered by the ADEA.

Fair Housing and Employment Act of 1968

The Fair Housing and Employment Act is a California state law that prohibits age discrimination in all areas of employment against workers over age 40. This law applies to a wider range of employers than the ADEA and includes all employers with five or more full-time or part-time employees. Other states have their own legislation to protect older workers from age discrimination and several state laws complement the ADEA.

The Age Discrimination Act of 1975

Complimentary to the ADEA, this act applies to any entity who receives federal financial assistance for programs and activities. Education is a prime example of a sector covered under this act. This act serves to expand the reach of the ADEA.

Equal Pay Act of 1963

In the original Equal Pay Act, only differences in pay that occurred because of sex were in violation. The act was then amended to include age, race, color, religion, national origin, disability, genetic information, and/or retaliation.

Title VII of the Civil Rights Act of 1964

This act is a federal law protecting employees against discrimination based on certain specified characteristics: race, color, national origin, sex, and religion. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment. While age is a characteristic missing from this list, this act inspired the creation of the ADEA in 1967 so it is important to understand. A later amendment added sexual orientation to this set of characteristics.

How To Eliminate Age Discrimination in the Workplace

Educated workforces and a culture of awareness about workplace discrimination can pre-empt age discrimination occurrences. Here are a few areas to consider:

Be Mindful of Language

Sometimes a friendly nickname can land you in age discrimination territory. Calling someone “old-timer” or “long in the tooth” even when joking can backfire. Make sure employees are not discussing older workers in a belittling fashion as that can single out older workers and result in disparate treatment.

Know the Law

Ignorance is not an excuse. Company management and HR should be trained on ADEA laws and ensure they exhibit behavior consistent with fair practices. Be sure to include front-line supervisors in training against practices that can be considered discriminatory on the basis of age. While younger workers are not protected against age discrimination under the ADEA, it’s important to be certain that opportunity and work privileges are made available based on criteria rather than age.

Review Policies and Practices

Do you have policies that appear neutral at face value but in practice tend to favor younger workers? Do you require a certain level of technical knowledge to perform basic functions? Do you have a forced retirement age? All of these policies and practices can be called disparate treatment. Have sensitivity to the actual behaviors your policies drive and notice any trends that impact certain age groups. Ensure you have policies to prohibit age discrimination and that supervisors are trained to recognize the signs of age discrimination in practice.

Provide Fair Access to Opportunity

When promotions or special work projects become available, have an internal process based on merit with established selection criteria to determine advancement. Age should not be a factor.

Make Training Available

Ensure training opportunities that arise are made available to all employees. Older workers can be ignored based on assumptions that they have a shorter career runway than younger workers. Older workers may also benefit from additional training in technical areas. Create a proactive culture where all employees feel comfortable requesting additional training.

Take care of your people and protect your business

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Questions You’ve Asked Us About Age Discrimination

Proving age discrimination is not usually a slam dunk. If you feel you’ve faced discrimination on the job, it’s important to take steps to protect yourself. Keep a detailed diary of events, including emails and voicemails that support your claim. Remember that unfair treatment is not always illegal. You must be able to prove that you faced negative consequences in the form of either disparate treatment or disparate impact to win an age discrimination claim.
According to the to American Association of Retired Persons (AARP), 2 out of 3 people over age 45 reported experiencing age discrimination.
The ADEA doesn’t expressly forbid this question but employers may come under scrutiny because this question can be linked to the intent to discriminate based on age. To determine if a job applicant is legally eligible to perform a job, employers are allowed to ask if they are over the age of 18.
“Respond however you feel comfortable. If you feel comfortable telling them your age and feel telling them would still maintain a professional atmosphere then it’s totally fine to tell them your age. Telling them your age could help build rapport and get them to answer your questions more genuinely. If you do not feel comfortable telling them your age then you absolutely do not have to and you can decline to answer without sounding off putting to the candidate. As long as you remember that you are in charge of the interview you can still set the tone. One way that I will respond is to say, “I love the question, I appreciate you asking, however, in an interview setting I want to stick to job related information. We’ll have time at other points of the process to review some of those personal details. I’d love to hear more about your experience at ‘such and such’ can you tell me more about what you did in that role?” I don’t want to chastise them or make them feel uncomfortable, so I just explain why I won’t answer that. Most importantly I pivot, I take control back of the conversation by asking them a question and get them talking about what I want them to talk about.” – Tyler Fisher

Milly Christmann is a high energy, operationally oriented talent management leader with extensive expertise in human resources, sales management, service and operations. She is recognized for collaborating with leaders to achieve their business goals by unleashing the power of an engaged workforce. By using process improvement, technology and strong, impassioned people skills as well as by attracting, developing and retaining top talent, Ms. Christmann drives change that matters.

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