More than just a number: Age discrimination still tripping up employers

Despite more than five decades of the Age Discrimination in Employment Act (ADEA), older workers continue to face discrimination at alarming rates, according to a new report by the U.S. Equal Employment Opportunity Commission (EEOC).

When the ADEA was first passed in 1967 to protect employees older than 40, the American workforce was comprised of mostly younger, male workers. Since baby boomers began entering the workforce that year, the labor force has grown rapidly while becoming more female and more diverse.

It has also aged significantly; the percentage of workers over 55 has doubled for several reasons.

First, the Great Recession took a toll on older workers’ savings, leading them to work longer. In addition, the American population is growing older, according to the United States Census Bureau. By 2030, Americans older than 65 will outnumber those under 18.

With all this in mind, why do employers still discriminate, even inadvertently, against such a large and valuable part of the workforce?

Drivers of discrimination

Whether the result of unconscious bias or deliberate thought, age discrimination is often based on outdated and unfounded assumptions. The most pervasive yet misguided perception is that as age increases, ability decreases. In fact, 44% of older workers are still employed — and thriving — in physically demanding jobs, putting them on par with the all-ages average of 46%.

Additionally, employers sometimes assume older workers will be a financial drain on company resources and choose to replace them with younger employees to save money. However, older workers are five times less likely to change jobs than younger workers, saving valuable training and recruitment resources that offset the hypothetical added cost of higher wages and health care. In addition, the Older Workers Benefit Protection Act (OWBPA) of 1990 makes it illegal to use an employee’s age as the basis for discrimination in benefits.

Costly court cases

Employees who believe they’ve been harmed by age discrimination may file suit under several federal laws, and many states offer further protections. In one recent New Jersey case, an employee successfully sued for more than $50 million in damages, citing the ADEA, Title VII of the Civil Rights Act, and the New Jersey Law Against Discrimination.

The EEOC reports that six out of 10 older workers have experienced age discrimination in the workplace. More than 18,000 charges were filed with the EEOC in 2017, and 90% of older workers believe age discrimination is a common practice among companies today. Only 3% have filed charges, however, suggesting the problem is significantly underreported.

While age discrimination can substantially harm your company in subtle ways, including a lack of diversity, loss of talent, etc., it can also take a measurable toll on your bottom line. Since 1997, the monetary awards received by victims of age discrimination who filed charges with the EEOC have more than doubled.

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Rethink your approach

As the workforce ages, employers must find new ways to avoid both intentional and inadvertent discrimination. Consider shifting a tenure-based bonus program to a performance-based approach, putting the emphasis on value to the company instead of years worked (which often correlates to age).

In addition, remove pay and age from consideration when making a reduction in your workforce. Layoffs may be necessary, but using either one of these factors to make cuts places an unfair burden on older workers. Assuming an older worker may retire soon and letting him go because of it is a clear case of discrimination. Likewise, laying off your highest-paid workers often translates to laying off your older workers simply due to seniority.

Keep in mind that gaps in ability don’t necessarily render an employee less valuable. If any workers, no matter their age, seem to be lacking necessary skills or falling behind, explore training and education options before assuming they are incapable. Teaching existing employees new skills saves time and money.

The easiest way to avoid discrimination is to embrace diversity in all forms, including age. Recognizing each employee’s unique strengths helps create a welcoming, multigenerational culture that allows everyone to contribute to the company’s success.

Ann Potratz is an associate editor with J. J. Keller & Associates. She specializes in business topics such as discrimination and harassment, background checks, and security, and is the editor of J. J. Keller’s Employment Law Today newsletter and Essentials of Employment Law manual.

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