Editor's note: This is part one of a two-part series on the ADEA. Part two is available here.
The Age Discrimination in Employment Act (ADEA), which prohibits employers from taking adverse employment actions against workers 40 and older, has been on the books for 50 years. And yet, despite few updates to the law, employers seem to regularly run afoul of its requirements.
“Frankly, the ADEA hasn’t changed much,” Eric B. Meyer, a partner at Dilworth Paxon, told attendees at a recent client seminar at the firm. And yet, employees are increasingly filing age discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC). The commission received about 1,000 claims the first full year it was tasked with ADEA enforcement; now it receives about 20,000 per year.
Add to that myriad state and local laws with more generous requirements and HR has its work cut out for it. But for the most part, compliance isn’t complicated. In fact, a lot can be achieved by remembering to include older workers in your diversity efforts, co-presenter Mary Tiernan of the EEOC said. Age shouldn’t be an afterthought in diversity planning, she told attendees. “We should always be looking at ability, not age. Just like we should be looking at ability, not race and not sex.”
Recruiting and placement
There are a number of age discrimination pitfalls to watch out for in recruiting, hiring and placement, Meyer and Tiernan cautioned.
First, the EEOC is keeping an eye on how and where employers advertise job openings. Words like “young” are obviously problematic but others, like “digital native,” can be more subtle and just as discriminatory.
Requirements that aren’t based on age but would largely apply to younger workers also may run afoul of the law if they tend to screen out older workers. Noting that you’re looking for a “recent college grad” or someone “with 3 to 5 years’ experience” may have that effect. Instead, consider phrases like “at least three years’ experience,” the pair recommended.
The places (both physical and digital) where employers advertise job openings can create the same problems, the presenters said. If you focus your recruiting efforts solely on social media sites or college job fairs, you may be discriminating against older workers, albeit unintentionally.
Likewise, it’s important to ensure that you’re not sending the wrong message in recruiting materials, Tiernan said. Consider the photos on your website; are you highlighting young employees, sending the message that this is who you want to hire?
Harassment can take many forms, the speakers explained, like when employees refer to a coworker as “grandma,” or constantly ask her “when are you going to retire?”
And when it comes to job applications, definitely don’t ask for birth dates or high school graduation dates, Meyer said.
At the interview stage, make sure you have a diverse hiring panel. This prevents “like me” hiring, Tiernan said. Employers should aim to include a variety of protected class representatives on the panel who are all tasked with evaluating candidates based on a standardized set of criteria.
Finally, ensure that you’re not steering older workers into certain positions, like back-of-house jobs, Tiernan said. As with all the federal EEO laws, a desire to present workers of a certain age (or race or gender, for example) to customers is not a legitimate business need.
As with other protected classes, age discrimination can include harassment or a failure to stop harassment by customers or coworkers.
Harassment can take many forms, the speakers explained, like when employees refer to a coworker as “grandma,” or constantly ask her “when are you going to retire?” Employers need to handle these situations when brought to their attention, but they also need to train front-line managers to spot these types of interactions.
Make sure your managers get that training on a regular basis, too, Tiernan said. One training conducted when someone is hired isn’t enough. Managers must be able to ensure that impermissible factors don’t creep into their decisions, but they also need to know that they’re responsible for intervening or alerting HR if someone is being harassed.
In part two of this series, we look at three more topics from the seminar: accommodations and upskilling; severance agreements; and avoiding litigation.