Outlawed for 50 years, age discrimination remains employment's 'open secret'
When Congress enacted Title VII of the Civil Rights Act of 1964 to defend against workplace discrimination, age was one of several factors left out of the law. And although the Age Discrimination in Employment Act (ADEA) was passed a few years later in 1967, it is still often overlooked, and employers still find themselves stumbling when it comes to compliance.
Now, as the ADEA celebrates 50 years of existence and the U.S. Equal Employment Opportunity Commission (EEOC) promises increased enforcement in that area, it's a good time to brush up on the law's history, requirements and pitfalls.
Looking good for 50?
Three years after Title VII was passed, research found that older workers were disproportionately excluded from the workforce. In 1964, in the private sector alone, potential employees older than 55 were barred from half of all job openings, and those over 65 were barred from almost all of them. The ADEA originally protected workers between age 40 and 70, but the upper limit was later removed.
“When the law was first passed, mandatory retirement was common and life expectancy wasn’t much longer,” Cathy Ventrell-Monsees, senior advisor at EEOC told HR Dive. But during the last half century, a lot changed and the average age of retirement for American workers is now 63. And until they retire, many Americans plan to be fully employed.
63 is the new 55
The National Council on Aging says that by 2019, more than 40% of Americans age 55 and older will be employed, and will make up more than 25% of the labor force, defined as people who are either working or who are looking for work. Interestingly, despite much talk about millennials entering the workforce, the U.S. Bureau of Labor Statistics predicts that the labor force participation rate for people 65 and older will increase faster than the rate of any other age group through 2024.
Life expectancy has increased and with more employees staying healthy longer, many want to work longer than previous generations. And some don't have a choice, due to rising healthcare costs or because they expect to outlive their retirement savings.
Regardless of the reason, older workers are an increasingly significant part of the employee base and are protected from adverse employment actions based on their age. And despite the ADEA's relative old age, discrimination against older workers persists.
Age is different from other protected classes, says Aaron Goldstein, partner at Dorsey & Whitney. For the most part, those other classifications are static, he said. For example, if an employee is a minority, they will always be part of that protected class. But an employee who is 25 years old won't be protected by the ADEA for 15 years. Because of the gradual progression, the change to a protected class isn’t always recognized, Goldstein said.
Age discrimination also seems to be more widely accepted, according to Ventrell-Monsees. A big part of employers' compliance problem is that age discrimination and age stereotyping are so common in our society, she said; "[it's] actually more accepted than other forms of discrimination." Age discrimination in the workplace is an open secret, Ventrell-Monsees continued; when someone makes an ageist comment (an over-the-hill joke, for example), it's often laughed off. These jokes, often inadvertently, compartmentalize people based on their age and send the message that those individuals are somehow less capable.
In fact, nearly two-thirds of workers aged 45-74 say they have experienced or observed age discrimination in the workplace, testified Laurie McCann, senior attorney with AARP, speaking before a Senate committee on aging. And even as businesses work to increase diversity throughout their workforces, older workers usually aren't one of the focuses, McCann said; only 8% of CEOs include age as a dimension of diversity, she said.
But workers protected by the law aren't going quietly into retirement. Age discrimination lawsuits are on the rise. The first year EEOC enforced the ADEA, it received about 1000 claims; in 2016, it received more than 20,000. This could be a reflection of an increasingly litigious environment, says Goldstein; after all claims in general are going up across the board, he said. But age discrimination claims usually get drowned out by sex discrimination claims, which are perceived to have more “zing.”
Progress — with room to improve
Some employers, the ones concerned with best utilizing talent, are proactively trying to build a multigenerational workforce, says Ventrell-Monsees. “There’s lots of research [showing] that age diverse teams are more productive,” she said.
So much of discrimination can be avoided by good performance management at every age.
Senior advisor, EEOC
Goldstein agrees. “Over the last five years, startups and tech companies are much more receptive to hiring older workers,” he said, adding that diversity helps teams avoid generational groupthink.
But even as some progress is being made to avoid and address age discrimination, more vigilance is needed. Age discrimination often involves attributing certain negative behaviors to age, when they just may be part of an employee’s personality. “If you were a grumpy college student, you will be a grumpy old person,” Ventrell-Monsees said; “I always tell HR that so much of discrimination can be avoided by good performance management at every age."
Recruiting is another area in which employers may need to take a look at their practices. Advertising for a “digital native” can be dangerous; instead, employers might seek a candidate who is adept at using a specific technology. And instead of looking for someone three to five years out of school, hiring managers may actually be seeking someone with at least three to five years of experience. Finally, as some employers are finding out the hard way, it also matters where you advertise; a social media campaign that only one (young) age group can see can give way to age discrimination claims, for example.
Still, Ventrell-Monsees says she's hopeful. “Look at where we were with sexual harassment until a few months ago. Enough people are saying wait; stop. Enough is enough.” She says she hopes EEOC's commemoration of the ADEA’s 50th anniversary hammers home the law’s simple message: It’s not your age — it’s your ability.