Best Practices in HR

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Michael Haberman
  October 3, 2018

Age discrimination in today’s world

Grey hair does not mean that someone wants to retire.

In the scheme of things in the working world, I am an old man. As I approach my 67th birthday (July 7th for those of wishing to send gifts) I am continually frustrated by reading stories and listening to friends talk about incidents of age discrimination. I just recently had a friend feel compelled to remove the first decade of her working life from her resume because it dated her. We workers, over the age of forty, are protected from discrimination by the Age Discrimination in Employment Act (ADEA), but even with that law, the judiciary is undecided about the scope of age discrimination.

Upper limits on experience

Everyone knows or should know, there are words that need to be avoided in job ads. A current trend in job ads or postings is to put an upper limit on the amount of experience that will be acceptable. That has actually been around for several years but seems to be gaining in popularity. A recent ruling by the Seventh Circuit Court of Appeals interprets these ads as having a disparate impact on workers over the age of 40. When a job posting or ad says “No more than 8 years of experience” it is basically saying “OLDER WORKERS STAY AWAY.” According to Amy Kett and Paul Skelly of Hogan Lovells, the Eleventh Circuit Court sais “that age-neutral recruiting practices that merely disparately impact older applicants do not violate the ADEA.” So two different courts have differing opinions.

Many reasons

There are many reasons given for putting in upper limits in job ads. The most common is that people with that level of experience cost more. There is some truth to that, but that is not the entire story. There is an expectation that an older worker will have higher salary requirements, but that is not always the case. In today’s world of second, third and fourth careers, many workers are re-inventing themselves. They are venturing out into new areas and subsequently have much more reasonable salary expectations. In other situations perhaps that worker is financially capable of taking a lower salary in order to do something they find interesting.

However, I often think that the wage cost reason is just a guise to avoid having older workers. Many younger managers have problems in managing older workers, be they reasons of authority, respect, feeling like they are being judged by someone their parent’s age, or just a “fit in the younger culture” reason.

Reasonable Factors Other than Age

In 2012 the EEOC issued a ruling on Reasonable Factors Other than Age, or RFOA. The EEOC said “…the ADEA prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”), unless the employer can show that the practice is based on an RFOA.” The EEOC does provide a list of factors that should be considered in assessing “reasonableness”. These are:

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of the injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

Many employers have a tendency to want to hire younger workers because of the misguided notion the younger worker will stay longer. In reality, a younger worker starting out on their career will often consider moving to another job in order to improve their situation. An older worker will have a tendency to stay longer. A sixty-year-old may stay 10 years, whereas a younger worker may only stay three years.

Sometimes an employer will make the assumption that the older worker is just looking for a place to retire. Indeed, that may be true for some, but for many, it is not. They are looking for a place that will provide them with a challenge. Retirement at age sixty-five no longer exists. The age at which an older worker can get full Social Security benefits is now beyond age 65 and increasing every year. Older workers are healthier than in the past. Plus, retirement can be boring.

Don’t reject someone on the basis of their age

Rejecting someone on the basis of their age being older than forty is not only illegal, it is short-sighted. You may be rejecting someone who can bring insight and work ethic to your job that you might not be able to find with younger candidates. You may be surprised with the skill set an older worker brings to the job. Make sure you are making good business decisions and not biased ones.

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