Warding off age discrimination claims in era of older workers

December 18, 2016 - by: Tammy Binford 0 COMMENTS

The U.S. Bureau of Labor Statistics predicts that nearly a quarter of the workforce will be made up of people age 55 and older by 2024. That contrasts to 1994, when just 11.9 percent of workers fell into that age group. If the projection for 2024 is correctand the aging of the baby boomer generation as well as other factors provide a solid basis for the forecastemployers need to take a look at how to handle a large number of workers under the protection of federal and state age discrimination laws.   Businessman showing a document to his colleague

The BLS figures, reported in a November 18 U.S. Department of Labor Blog post, show that the 55 and older crowd is expected to constitute the largest slice of the workforce pie in just eight years. Here’s the breakdown for 2024:

  • 24.8 percent of workers are expected to be 55 and older;
  • 19.4 percent are expected to be 45-54;
  • 22.0 percent are expected to be 35-44;
  • 22.5 percent are expected to be 25-34;
  • 11.3 percent are expected to be 16-24.

Those figures contrast with actual figures from 1994, which show that:

  • 11.9 percent of workers were 55 and older;
  • 18.6 percent were 45-54;
  • 26.9 percent were 35-44;
  • 26.2 percent were 25-34;
  • 16.5 percent were 16-24.

Risk in RIFs

So employers need to know the risks of running afoul of the federal Age Discrimination in Employment Act, which forbids discriminating against someone who is 40 or older on the basis of age. Also, some states have their own age discrimination laws, some of which protect workers younger than 40.

Reductions in force (RIFs) often present risks. Although RIFs are usually motivated by legitimate, nondiscriminatory considerationsusually a need to cut coststhey also can pose a discrimination threat, according to Amanda M. Jones, an attorney with the Cades Schutte LLP law firm in Honolulu, Hawaii.

“During a RIF, older employees may perceive, correctly or not, that they were selected for the RIF because of their age,” Jones says. Although that doesn’t mean RIFs must be avoided, it does mean that employers need to make sure a RIF doesn’t disproportionately affect older workers.

Jones says employers should minimize the use of subjective factors in determining which employees to let go. She also urges employers that plan to offer severance agreements during a RIF to consult legal counsel to ensure compliance with the Older Workers Benefit Protection Act, which safeguards employee benefits from age discrimination.

In addition to RIFs, employers also face risk when denying employment to an older worker who may be considered overqualified for the position, Jones says. An employer may have a legitimate concern that an overqualified worker will become bored with the job and/or will continue looking for a better position, but courts have recognized that disqualifying an applicant because he or she is considered overqualified “can mask age discrimination,” she says.

Risks in stereotypes

Employers also need to be aware of the risks stereotypes create. “Unfortunately, stereotypes about older workers persist, including that workers above a certain age or of a certain generation are incapable of learning to use new technologies, are less motivated, and are less flexible,” Jones says. “These stereotypes can infect decisions about who to hire, who to promote, or who to train.”

Human resources professionals can reduce the risk by providing training to the managers who make hiring and promotion decisions, Jones says. “While the training should include a discussion about all of the characteristics protected by law, when discussing impermissible age discrimination, it is helpful to point out the problems with using stereotypes about age (young and old) to guide decision making,” she says.

Sometimes employers fail to recognize the risks posed by age discrimination. “One reason for that is jokes and stereotypes about age are prevalent in our society and generally are not seen as being politically incorrect,” Jones says. “For example, walk into a greeting card store and you’ll find dozens of birthday cards that poke fun at people getting older.”

Jones says people sometimes forget that jokes considered acceptable outside of work can create risks in the employment setting. “In addition, with all the talk about millennials, Gen Xers, and baby boomers, it can be easy to get caught up in stereotypes that, when used as a basis for employment decisions, can result in age discrimination claims,” she says.

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