The Aging Workforce: DOs and DON’Ts to Avoid Discrimination

William H. ShawnCo-Managing Partner, ShawnCoulson

The changing demographics in the United States and the desire of baby boomers to work longer than earlier generations has led to more older employees in the workforce. That has led to thousands of claims of age discrimination being filed against employers with the EEOC. Consider that in fiscal year 2018, the EEOC received 16,911 charges of age discrimination. A decade earlier in 2008, the EEOC received 24,582 age discrimination charges.

For employers, these statistics mean that preventing age discrimination in the workplace needs to be a priority. The federal Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees and applicants who are age 40 and older when it comes to any aspect of employment including:

  • Hiring,
  • Firing,
  • Pay,
  • Job Assignments,
  • Promotions,
  • Training, and
  • Fringe benefits.

The ADEA applies to employers with 20 or more employees. It does not protect workers under the age of 40 or independent contractors. (Many states have their own laws prohibiting age discrimination.)

To help prevent age discrimination at your organization, here are some DO’s and DON’Ts to consider:

Don’t allow employees to tease someone because of age (race, sex, national origin or other protected status). For example, in one court case, an employee’s co-workers frequently made fun of his memory, baldness and certain speech habits. When he was terminated at the age of 58 and replaced with a 36-year-old man, he filed a claim of age discrimination.

In another case, a 56-year-old was told by managers that she was exhibiting signs of Alzheimer’s disease.

The cases illustrate why it’s best to maintain a respectful workplace and never allow joking at any one’s expense.

Do take appropriate action to address discrimination issues as soon as they arise. A single incident of an employee teasing another is not likely to lead to a lawsuit if the employee is disciplined and the behavior immediately stops. But allowing continuous discriminatory behavior creates a hostile work environment that can lead to legal claims.

Don’t ask age-related questions during job interviews. Even in cases when it might be legal to ask an applicant’s age, if you hire a younger candidate and the decision results in a charge of age discrimination, it can be difficult to prove that your choice had nothing to do with age.

Do make age-neutral decisions when training and promoting employees. Emphasize skills and performance. Apply standards equally to all employees.

Don’t base decisions about employees or job applicants on stereotypes, such as older people are not energetic or able to understand the latest technology.

Do examine decisions to terminate employees to make sure they are based on performance. Make sure decisions can withstand the scrutiny of the EEOC or a jury. Keep contemporaneous records of employees with poor job performance. Make sure there is a paper trail throughout employment. Provide written warnings when performance is unsatisfactory.

Don’t retaliate against an employee who makes a claim of discrimination. It is illegal to fire, demote, harass, or otherwise “retaliate” against employees or applicants because they filed a charge of discrimination, complained to their employers about discrimination, or participated in an employment discrimination proceeding (such as an investigation or lawsuit).

For example, let’s say an employee files a charge of age discrimination with the EEOC claiming he was passed over for promotion because of his age. It is illegal for the employer to terminate the employee in retaliation for the reporting the conduct — even if the EEOC later determines that no discrimination occurred.

Do provide training for managers and supervisors about the types of behavior that constitutes illegal discrimination, harassment and retaliation. Establish a comprehensive age discrimination policy. Post it on bulletin boards and feature it in company media.

Don’t use employees’ ages as a basis for discriminating against them when it comes to benefits. This violates the Older Workers Benefit Protection Act.

Do consult with an attorney if you receive a notification from the EEOC that a complaint has been filed against your organization.

Don’t approach layoffs based on age. In some cases, employees start with the highest paid employees (who tend to have seniority) or the older employees (because they figure they will be retiring soon).

Do follow the letter of the Older Workers Benefit Protection Act if you ask employees to sign a waiver in connection with severance or early retirement programs.

Don’t place advertisements looking for “recent college graduates.” In one EEOC lawsuit, a company offered its employees a bonus for the referral of a “friend’s younger brother or sister.”

Do be aware that employers generally can’t terminate employees when they reach a certain age. With rare exceptions, employees cannot be forced to retire at age 65, 70 or other age.

The aging of the labor force makes it important for employers to ensure their policies don’t discriminate against older employees. Consult with your attorney or human resources advisor for more information in your situation.