Ageism is a "silent, open secret in too many of our workplaces," according to Victoria Lipnic, acting chair of the Equal Employment Opportunity Commission (EEOC). Lipnic’s comments come on the heels of the EEOC’s new report, The State of Age Discrimination and Older Workers in the U.S.

As the EEOC report highlights, older workers will represent a large segment of the country’s workforce for the foreseeable future. "Don’t get caught up on the 10,000 boomers retiring a day statistic," Lipnic said at the agency’s EXCEL Training Conference. She noted that many boomers are not financially ready to or interested in retiring, which means that they will remain in the workplace. At the same time, older members of Generation X are now reaching their 50s.

According to the Bureau of Labor Statistics (BLS), the oldest segments of the workforce —those ages 65 to 74 and 75 and older — are expected to increase the fastest through 2024. This oldest cohort of workers of age 65+ workers is projected to grow by 75 percent by 2050, while the group of workers age 25 to 54 is only expected to grow by 2 percent over this same period.

Understanding the Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. The federal employment law specifically 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.

An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age. Accordingly, to avoid running afoul of the ADEA, employers must work to ensure that they are making decisions based on abilities, not age.

Prevalence of Ageism in the Workplace

More than 6 in 10 workers age 45 and older say they have seen or experienced age discrimination in the workplace, according to a 2017 survey cited in the EEOC report. Of those, 90 percent say it is somewhat or very common. In another survey in 2015, more than 3 of 4 older workers said their age was an obstacle to finding a job.

In total, 18,376 ADEA charges were filed with the EEOC in fiscal year 2017. Unlawful discharge is the most common practice asserted in ADEA charges filed with the EEOC. In fiscal year 2017, 55 percent of ADEA charges alleged discriminatory discharge.

As highlighted by a study at the University of California at Irvine and Tulane University, age discrimination also often impacts hiring. Researchers submitted 40,000 fake job applications that included signals regarding the ages of the applicants and then analyzed the response rates. Overall, applicants age 49-51 applying for administrative positions had a callback rate 29 percent lower than younger workers. For workers over age 64, the response rate was 47 percent lower.

Best Practices for Preventing Age Discrimination

Age discrimination is prevalent largely because employers don’t recognize it as a problem in their workplaces until they face legal action. Below are several best practices that can help employers avoid ADEA liability:

• Workplace culture: As highlighted by the EEOC, culture is especially important with respect to age discrimination that often arises from an unconscious application or stereotyped notion of ability. The leadership of an organization plays a critical role in creating and fostering a culture that is committed to a diverse multi-generational workplace.
• Reject stereotypes: Employers can also help prevent age discrimination in the workplace by recognizing and rejecting stereotypes, assumptions, and remarks about age and older workers just as they reject such stereotypes, assumptions and remarks about someone's sex, race, disability, national origin, or religion.
• Foster age diversity: Employers should consider including age in their diversity and inclusion efforts. In addition to lowering the risk of an ADEA lawsuit, it can also boost your bottom line. Research demonstrates that age diversity can improve organizational performance and lower employee turnover. For instance, studies have found that mixed-age work teams result in higher productivity for both older and younger workers
• Hiring strategies: Recruitment practices can avoid age bias by seeking workers of all ages and not limiting qualifications based on age or years of experience. The EEOC advises that applications, whether online or paper, should not ask date of birth or other age-related questions, just as they should not ask an applicant to identify her race or sex. Training interviewers how to frame age-neutral questions and using a standard or structured process can also help avoid age bias throughout the interview process
• Retaining Older Workers: Workers age 50 and older have the highest levels of engagement in the workplace and are among the most productive. Effective retention strategies decrease unexpected turnover costs and loss of institutional knowledge, while also increasing engagement and productivity. The EEOC recommends providing career counseling, training and development opportunities to workers at all ages and at all stages of their careers. Mixed-age and reverse-age mentoring can increase worker productivity and satisfaction.

As with any employment issue, the key is to be proactive. To discuss how to deter age discrimination in your workplace, we encourage you to contact one of our experienced employment attorneys who can work with you to create and implement a comprehensive anti-discrimination policy.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Ramon Rivera, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.