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Maturing Workforce Puts Age Discrimination In The Spotlight

Law360—Braden Campbell

Americans are staying in the workforce longer, and with the number of Americans age 65 or older projected to more than double its 2015 level by 2060, experts say the stage is set for a rise in age discrimination complaints. Here, Law360 looks at how employers can stay ahead of the curve and out of plaintiffs' crosshairs.

Combined with what lawyers say is an all-too-frequent tendency to view age bias as less serious than discrimination based on race, sex or religion, the increase in the number of older workers could mean that unwary employers are in for a rude awakening while attorneys who represent workers see an uptick in business.

“If I was a lawyer starting a plaintiffs firm to sue over age discrimination, I would assume business is going to get better,” said David Neumark, an economist with the University of California, Irvine, who studies age discrimination. “Even if the behavior gets better, there’s just more people to age discriminate against. … Anybody who has a business focused on older people is going to have a pretty good next 20 years.”

Neumark recently headed a study looking into the barriers that prevent older workers who want jobs from getting them. He and his team replied to more than 13,000 ads for administrative, sales and janitorial jobs with three sets of resumes, identical save for the ages of the applicants: One fictitious worker was between the ages of 29 and 31, one between 49 and 51 and the other between 64 and 66. The team found that younger workers were generally the most likely to be called back and the eldest workers the least, with some variation between genders and job types.

Attorneys say this willingness to disregard older workers extends far past deciding between potential hires. Often businesses can marginalize older workers by emphasizing a youthful identity or by pushing older workers out. Stray remarks making fun of a worker’s advanced age may be tolerated in a way racist or sexist comments aren’t.

“I think in everyday society, age is sort of treated by some people as different than other prohibited factors, in terms of making comments or whatever, and I think some employers do that as well,” said Outten & Golden LLP’s David Lopez, who was Equal Employment Opportunity Commission general counsel under former President Barack Obama. “There was often a sense that age was not as important.”

Though society may not look at age bias as harshly as it does other forms of discrimination, the enforcement agencies do. The EEOC said in its strategic enforcement plan covering 2017 through 2021 that it will target class-based recruitment and hiring practices that discriminate against protected classes, including older workers. This continues a trend of greater age bias enforcement by the agency, which has filed more than 20,000 age bias complaints each of the last nine years after a decade of filings in the middle and high teens.

Older workers and their advocates are similarly likely to turn an unkind eye toward discrimination, and as their ranks grow, the risk of suits likely will as well.

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Though the question of whether the Age Discrimination in Employment Act allows applicants harmed by a discriminatory hiring policy to bring disparate impact claims is currently splitting courts, employers would do well to watch for hiring practices that screen out older workers, experts say.

Practices that can invite suits include using online hiring forms that provide for a maximum number of years or experience or don’t allow for birth dates earlier than a certain year. Online job ads that ask for “recent college graduates” are also similar to the signs barring applicants over 35 that the ADEA was drafted to outlaw.

“Employers assume if they’re going to hire at a particular salary level, they have to set a maximum number of years of experience because they assume people with experience wouldn’t accept a lower salary,” said Dara Smith, a staff attorney for the AARP Foundation. “We don’t think that’s right. Let people self-select.”

Though its exact causes can vary, age discrimination is more rooted in stereotypes or unconscious bias than it is intentional, experts say. As such, it’s important to train company leaders not to consider age when they make decisions.

“I think they should … adopt training programs for managers so managers understand it’s like any other form of discrimination, and age-related comments, disparaging comments are just as serious as racist or sexist comments,” Lopez said.

This tip applies to low-level leadership as well as those on top who set firm culture. It’s important that companies demonstrate an attitude of inclusion. This entails including all types of workers in employer publications and brochures, making sure all are encouraged to take part in team-building activities and impressing on employees the importance of respecting members of all protected classes.

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Because discrimination is often the result of bias, it’s important to use objective metrics when making decisions. In hiring, this means looking at demonstrable skills and experience rather than fixating on a number. In promoting, firing or other personnel decisions, this means adopting objective measures of performance.

When employers rely on facts and objectivity, rather than personal judgment, this serves the dual purpose of building and maintaining the most qualified workforce and avoiding lawsuits.

“They have to take affirmative steps to comply with HR best practices, build in objectivity and checks in performance measurement and hiring decisions and compensation decisions,” said Outten & Golden’s Jahan Sagafi.

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