Editor's note: Katie Clarey is new to both the HR Dive team and HR. This piece is the sixth of her new series, Back to Basics. If you're new to the field (or just need a little refresher), follow along as she speaks with experts and lays out the basics of federal employment law. She can be reached at [email protected].
Imagine a woman named Dorothy has worked at an interior design firm for the last 30 years. She started out a few days after she turned 25, which makes her 55 years old. The firm recently announced plans to downsize, which include layoffs. When executives relayed this information to Dorothy and her co-workers, they mentioned that this would bring the firm an opportunity to refresh its practices and realign itself with up-and-coming styles palatable to young people. The executives emphasized that employees who continued on with the firm would need passion and "a fire in their bellies" to freshen up the firm's practices.
When Dorothy received notice of her layoff, she was surprised; years of good performance reviews seemed to reassure her of her career's longevity at the firm. She felt she had been discriminated against because of her age and told her manager she had plans to call a lawyer and possibly file suit.
I suspect Dorothy's inclination to seek legal help might be warranted, considering the protections the Age Discrimination in Employment Act (ADEA) has set up. To help myself understand this law with more clarity, I called up two experts in employment law: Matt Gomes, partner at Weinberg, Wheeler, Hudgins, Gunn and Dial, and Melissa Rodriguez, partner at Morgan Lewis.
"The ADEA is a federal law that prohibits employee discrimination and harassment on the basis of age and more specifically on the basis of an individual being 40 years or older," Rodriguez told me in an interview.
Because this law deals with only one protected class — unlike Title VII of the Civil Rights Act of 1964, which deals with discrimination on the basis of race, sex, national origin, color and religion — its basics can be explained with relative simplicity. Let's get to it.
How it works
Like Rodriguez said, the ADEA has created a protected class out of employees and applicants who are older than 40. Employers should note that some states have set up age-related protections for workers younger than 40, as well.
Continuing to line up with Title VII, the ADEA has been interpreted to prohibit harassment and retaliation, Gomes told HR Dive in an interview. This law applies to private employers with at least 20 employees, state and local governments, employment agencies, labor organizations and the federal government, according to the Equal Employment Opportunity Commission, which enforces it.
Where employers mess up
Both Gomes and Rodriguez tell employers to avoid using language that can be construed as age-discriminatory.
"Managers sometimes use language that, outside of the workplace, wouldn't raise an eyebrow," Gomes said. He cited adages like "you can't teach an old dog new tricks" and phrases like "new blood" as language that gets employers into trouble.
"When somebody says this regarding an older worker, peoples' antennas go up because it sounds like there is age stereotyping going on," he said. "Most of the time we wouldn't think there's any problem with that language, but in age cases that can sometimes be evidence of bias toward older workers."
When a business must downsize, leaders may be tempted to cut older workers who may make more, and thus save the company more money.
"Older employees generally, because they've been in the company longer, tend to be more senior, more highly paid. Seniority is a legitimate, bona fide justification for wage difference in the same job," Gomes said. But when leaders hand out pink slips to workers who make more so they can save more, they've "inadvertently walked into an age discrimination claim."
Sloppy performance reviews
Sometimes a new manager will take over a group of employees and fire an older worker for poor performance. That move could be in the clear, legally speaking, if performance reviews reporting the worker's slapdash work are on file. But often that's not the case and a manager ends up facing age discrimination claims.
"If you're going to have a performance evaluation system, you've got to be honest. You've got to make it work," Gomes said. "You have to be meaningful in your evaluations with people. If you don't, they're going to come back to bite you."
Unconscious bias and stereotypes
Employers can sometimes let unconscious bias go unchecked among business leaders. This can create major problems for good-intending people, according to Rodriguez.
"We all have our biases based on our own backgrounds and experiences," Rodriguez said. "It's important for us to recognize that those exist and learn how to deal with them." Rodriguez said it's important to prompt managers to avoid stereotyping workers.
"Any assumption that older workers are less confident or less energetic can lead to a charge of age discrimination if employers are making decisions based on that," she said.
To avoid age discrimination-related mistakes — and litigation — employers may want to consider folding Rodriguez's and Gomes' best practices into their own.
Gomes said he recommends documenting everything, from promotions to layoffs and job interviews to performance reviews. "Anecdotal evidence is bad," Gomes said. "In my job, if it hasn't been documented, I tell clients it's almost like it didn't happen."
Train managers to avoid mistakes
Both Gomes and Rodriguez said training is the most important tool in eradicating age-discrimination from the work place. "Good employers are trying to get ahead of the issue and are training and counseling their supervisors," Gomes said. "It's important to not just have policies and to implement the policies and to let your employees know from the top down that we are an equal employer."
But a thorough training regimen doesn't just go out to managers and supervisors; employees need to know what standards are in place and how to report an incident when something goes wrong, Rodriguez said.
Re-assess hiring operations
When putting together a job post, selecting applicants and interviewing candidates, "employers should stay focused on legit business criteria," Rodriguez said. Hiring managers can assess an applicant's talent, experience and skills, but they need to stay away from more anecdotal traits. "Make sure the hiring criteria does not exclude older workers, directly or indirectly," she said.
It might be worth while to assess applications that ask for age-related dates, too, she recommended. "Do we need to know the date they graduated from high school," Rodriguez asked, "or do we just need to know that they graduated?"
If I've done my job right, you now have a working knowledge of how the ADEA works, where employers trip up and how to avoid those pitfalls. As examine how to scrub your workplace of age discrimination, I'll keep writing on ADEA-related litigation, which you can read on our website or in our daily newsletter.
Correction: A previous version of this article misidentified the law firm Weinberg, Wheeler, Hudgins, Gunn and Dial.