Every Business Should Prevent Age Discrimination

03 April 2023

About 15% of people surveyed by the American Association of Retired Persons believe they weren't hired for a job they applied for because of their age. This was according to a series of surveys of workers age 50 and over conducted by the organization in 2022. Other survey results show that a whopping 93% of respondents believe that age-based discrimination is common in the workplace today.

In 2021, U.S. workers filed 12,965 age-discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC). Also, many experts believe that far more instances of age discrimination occurred than were reported. Successful cases have resulted in payouts ranging from $2.85 million to $250 million, according to job site Zippia.com.

One of the key laws that protect older workers is the Age Discrimination in Employment Act (ADEA). It prohibits discrimination in any part of employment — including hiring, firing, pay, assignments, promotions, layoff, training, benefits and other conditions of employment. The ADEA applies to people age 40 or older, which the EEOC defines as a protected class. It doesn't apply to people younger than 40, though some states have enacted laws to protect younger workers as well.

Case in Point

Late in 2022, drugmaker Lilly USA faced a major age-discrimination lawsuit filed by the EEOC. According to the suit, a senior vice president for human resources and diversity had claimed in 2017 that the company had 20% fewer millennials in its sales force. The VP then proposed the company target 40% "Early Career" hiring and that the company's managers should change their hiring practices to make it easier to hire younger employees.

The EEOC filed the suit in the U.S. District Court for the Southern District of Indiana, Indianapolis Division (EEOC v. Lilly USA, LLC, Case No. 1-22-cv-01882) after an unsuccessful pre-litigation settlement. The EEOC sought "back pay and liquidated damages for applicants subjected to unlawful age discrimination."

"Older Americans are working longer and in larger numbers than ever before," stated Robert Weisberg, regional attorney for the EEOC's Miami District." This case underscores the continued need for the EEOC to break down barriers to employment for those older workers."

A class-action lawsuit brought by Monica Richards, a 53-year-old employee of Eli Lilly, followed in October 2022. The results are still pending on both suits.

6 Tips to Help Your Company Avoid Age Discrimination

According to the EEOC, 50 years after the implementation of the ADEA, one in four discrimination claims is associated with ageism. Here are six tips to help your company avoid expensive age-discrimination lawsuits:

1. Create a diverse workforce. It's common for hiring managers to seek employees similar to themselves, often without realizing it. One problem may be that individuals are being hired based on how well they fit in with company culture rather than based on their job qualifications.

To avoid this, create checks and balances to ensure new staffers are being chosen for the correct reasons. For example, if a manager decides not to hire someone because the candidate wouldn't fit into your culture, determine how the manager defines that term. For instance, if the hiring manager believed an older candidate wouldn't work well with younger coworkers, that might be considered age discrimination. 

Alternatively, it's possible that the hiring manager found the candidate didn't possess the problem-solving skills necessary for the job. That would be an appropriate reason for not hiring the person.

2. Draft job descriptions carefully. Soft skills, sometimes dubbed "people skills," include things such as communication, leadership, time management and teamwork. Areas where employers can get into trouble include using words such as "young," "tech savvy" or "energetic," which can be viewed as discriminatory.

Better choices include "motivated," "dedicated" and "driven." These focus on the applicant's work ethic and passion without suggesting they should be young to qualify for the position. Although many hiring managers are fond of such job tags, a still better approach may be to describe the role in clear detail instead of focusing on the type of person to fill the position.

3. Design the application process carefully. Few companies need all the information collected on job applications, at least initially. For example, in the context of age discrimination, do you really need a full work history as well as the year the applicant graduated from high school or college?

More appropriate and less risky questions can include: "Do you have 10 years of experience in this field?" Or, perhaps, "Do you have experience with this software?"

In short, don't request unnecessary information. If applicant data is required only for background screening, it can be collected later in the hiring process. Some best practices include:

• Avoid asking for an applicant's birth date or age,
• Use various recruiting tools so you get a diverse pool of applicants,
• Develop structured interview guides for consistency so all job applicants are asked the same questions,
• Train interviewers on asking appropriate questions and avoiding off-topic conversations that could be inappropriate,
• Set hiring criteria and document how decisions were made to support every hiring decision, and
• Implement proper procedures for background screening, making sure they're compliant with your state's laws.

4. Teach employees well. Warn staff members of the dangers of stereotyping. For instance, someone might assume that older employees don't understand new technology or aren't on top of industry trends. In fact, many are very tech savvy from having used various forms of business technology for years. Others may be excited about new tech and more than willing to learn. Everyone should avoid making assumptions based on age.

Beyond that, educate employees about the ins and outs of the ADEA. Consider additional training on topics such as implicit bias and how to identify, prevent and report discrimination and harassment. Enact a zero-tolerance policy prohibiting discrimination and harassment. Provide guidelines regarding inclusiveness, emphasizing that all employees — regardless of age, race or gender — should be treated in the same fashion.

5. Address the risky topic of retirement. Some people in their 50s are ready to retire, while others plan to work until they're 70 or older. Generally, you can't force an employee to retire. Asking questions about when an employee plans to retire is also considered inappropriate. Be sure employees — and especially supervisors — are aware of these and other risks related to the topic of retirement.

6. Encourage staff members to choose their words carefully. As much as possible, create a safe working environment for everyone. A big part of this is urging and, if necessary, teaching employees to be more mindful about what they say. Most people are well aware that they shouldn't call anyone "old," but other phrases such as "overqualified" or comments such as "it's never too late to make a change" are also potential land mines.

Benefits of a Discrimination-Free Workplace

Obviously, avoiding litigation is a plus for any business in terms of time and money. But perhaps more important is the fact that a company that overlooks or enables age discrimination, knowingly or otherwise, could be lowering morale and productivity — increasing the likelihood of high turnover.

Other Laws Pertinent to Preventing Discrimination

While the main article focuses on the protections under the Age Discrimination in Employment Act and the actions of the U.S. Equal Employment Opportunity Commission, other laws also apply. Here are three that businesses should also be aware of:

1. The Civil Rights Act of 1964, 
2. The Older Workers Benefit Protection Act, and
3. The Worker Adjustment and Retraining Notification Act.

Familiarizing yourself and your employees with how these laws address age discrimination can strengthen your company's knowledge base regarding this important topic. A better understanding of how to deal with issues of age in your workplace may help your business avoid legal pitfalls.

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