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age discrimination in employment act age discrimination in employment act

Old people get a bad rap. Especially at work. People generally associate youth with energy, strength, relevance, and resilience. Whereas old people are a burden, dependent, and culturally irrelevant. It’s a myth that older workers can’t keep up with the pace of a modern office, yet ageism and age discrimination are rampant in the workplace. Which is ironic considering there are more older workers in the workforce now than before, and their numbers are only expected to increase. According to an article in the New Yorker, there will be more people on Earth over the age of 65 than under the age of 5 for the first time ever by 2020. With a quickly aging workforce, it’s time to address the issue of age discrimination at work

Age discrimination is illegal

Discriminating against applicants or employees on the basis of age is illegal. The Age Discrimination in Employment Act (ADEA) of 1967 protects workers from workplace age discrimination. Key elements to remember include:

The ADEA protects employees from age age discrimination at work discrimination at all levels of employment.

The ADEA prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. The ADEA protects workers that are age 40 and older, and applies to employers with 20 or more employees. Any employment policy or practice that adversely impacts applicants or employees over 40 and is not based on a reasonable factor other than age (RFOA) is also illegal. If you are going to lay-off someone, it should be for something directly related to job performance.

An employer cannot set a mandatory retirement age.

Employers cannot force an employee to retire at 65 because you think they’re too old to work. Only in certain industries can you have a mandatory retirement age, such as in government law enforcement positions, air traffic control, or airline pilots.

An employer can ask for your age.

It is legal for an employer or potential employer to ask an applicant or employee’s age and graduation date. A common need/use is for an employee or applicant’s date of birth is to conduct a routine background check. If there is a minimum age requirement for a position, an employer might be required to verify age. It depends on how the employer uses that information that’s important. Employers that use an applicant’s or employee’s age for an unlawful purpose could be slapped with a lawsuit.

An employer can’t fire an older worker because of higher benefits costs.

The Older Workers Benefit Protection Act (OWBPA) is an amendment to the ADEA, and prohibits employers from using an employee’s age as the reason for discriminating based on employee benefit plans (i.e. health insurance plans, life insurance, retirement, or pension benefits). It also makes it illegal for employers to target older workers when laying off staff on the premise that their benefits cost too much. The OWBPA instituted an “equal benefits or equal cost” rule that requires employers to offer equal benefits to all employees regardless of age, or pay the same benefit costs to all employees regardless of age.

Age discrimination can happen if all parties involved are over the age of 40.

If the victim and the person who did the discriminating are both over the age of 40, it is still considered age discrimination. For example, if you have a manager that is 45 that fires her 61 year old subordinate because she thinks he is too old to be in touch is illegal.

 age discrimination enforced by EEOC  age discrimination enforced by EEOC

It is important for employees, employers and HR managers to be aware of applicable state laws that protect against age discrimination. Many states may have stricter age discrimination laws or laws that protect workers under 40.

The Equal Employment Opportunity Commission (EEOC) enforces these federal age discrimination laws. If you feel you have been discriminated against, you should contact the EEOC to file a claim. It is illegal for employers to retaliate against an employee for filing a claim against them.

Older workers are a treasure trove of talent & experience

As we’ve observed, age discrimination at work is a reality for many older workers. But ageism, those negative assumptions and stereotypes regarding old people’s abilities and limitations, can be a more wide-ranging issue, and is one that can be harder to correct. Not all ageism is prejudice-driven, but being aware of how people view older individuals can be the first step to replacing negative stereotypes with realistic, positive traits.

Myths that prevent older workers from getting hired and from
advancing at work:

  • More likely to be burned out
  • Resistant to new technologies
  • Absent more often because they get sick more frequently
  • Refuse to work for younger supervisors
  • Reluctant to travel
  • Less creative
  • Less productive
  • Slower mental acuity or cognitive function
  • More expensive to employ because they have higher salaries and use more benefits
  • Can’t multitask
  • Resistant to change or not adaptable
  • Culturally out of touch or irrelevant

The truth about old workers’ contributions to the workplace is much different than those misperceptions make it seem. In a 2010 study, researchers compared young adults (aged 20 – 31) and older adults (aged 65 – 80) on 12 different tasks including cognitive abilities, perceptual speed, and memory. The older workers’ performance was more stable and less erratic from day to day than that of the younger workers.

Another case study examined how car manufacturer, BMW, improved productivity with an aging workforce. BMW modified one factory assembly line that used only older workers, with the average age being 47. The company made some accommodations based on employee ideas, like providing special shoes so employees’ feet didn’t hurt so much and offering chairs so people could sit down if necessary. Overall, BMW made 70 small changes that cost only $50,000. As a result, that line’s productivity went up seven percent, the defect rate fell to zero, and the absenteeism dropped below the plant’s average.

Reasons why older workers are proven to be good employees
and should get hired:

  • Loyalty
  • Reliability
  • Having a deeper network of contacts than younger workers do
  • Leadership
  • Detail-oriented
  • Organized
  • Organized
  • Listening
  • Writing skills
  • Problem solving
  • Workplace wisdom
  • More focused

Everyone ages, and everyone ages differently. Age is not an indicator of inability or declining mental acuity. Workers over the age of 40, and even over the age of 60, have a wealth of knowledge and experience that can greatly benefit organizations (even tech companies!) and their employees.

But can’t age discrimination go the other way too? Millennials and younger generations can be limited by stereotypes as well. People under 30 are generally viewed as being addicted to smartphones, needing too much validation, being vain, and too entitled. It’s true that ageism can be just as easily directed at the young as it is at the old. The extent that age bias or discrimination prevents the young from getting and maintaining employment is not well researched or documented. Our focus here are the unique burdens of ageism and age discrimination seem to primarily negatively affect older people. But maybe the best question for employers to answer is how they can make the workplace a more inclusive environment for all generations. We have some ideas:

  • More awareness to dispel misconceptions about aging and the aged.
  • Review how you structure your hiring and performance management systems so that everyone can thrive in your environment.
  • Think about how to incorporate workers to your organization, specifically regarding their skills and culture. Rather than making reasonable accommodations for older workers, focus efforts on making your organization’s culture and structure inclusive for a diverse group of workers.