Discrimination in the Aging Workplace

Careers are lengthening in line with life expectancies, and employees who do retire may stay in the workforce, but in other jobs. Companies must be adaptive to this new reality, remaining competitive while ensuring they don’t marginalize this portion of the workforce and risk legal liability.

The Law on Age Discrimination

The federal Age Discrimination in Employment Act was established in 1967 to prohibit employment discrimination of any term or condition of employment, as well as harassment due to age against persons 40 or older. It applies to employers with at least 20 employees; labor organizations with at least 25 members; employment agencies; and federal, state and local governments. This protection also extends to workers who are discriminated against compared to co-workers age 40 and older. (See Karlo v. Pittsburgh Glass Works, LLC.) Employers may offer defenses to ADEA claims, such as showing a characteristic or trait, such as age, is “reasonably necessary to the normal operation of that particular business or enterprise.” Many states and localities have similar laws, some broader than the ADEA (e.g., a New York City law prohibits age discrimination at any age).

The New Age of Age Discrimination

Recently, courts have been divided as to whether the ADEA also protects job applicants in cases of unintentional discrimination (i.e., disparate-impact claims, where a “neutral criteria” adversely affects a protected group). Compare Villarreal v. R.J. Reynolds Tobacco Co. (holding job applicants cannot bring disparate-impact claims) with Kleber v. CareFusion Corp. (considering the lower court’s finding that the law protects rejected applicants where a job posting placed a cap on years of experience).

Companies are also coming under fire from lawsuits alleging older populations are being illegally excluded from receiving certain job advertisements on social media–a practice commonly called “tailored” or “targeted” advertising. Targeted advertisements and recruiting efforts rely heavily on social-media platforms today, so the implications of such challenges could be wide-reaching.

ADEA victims may receive relief in the form of back pay, front pay or reinstatement of their position, but more notably in liquidated damages for willful violations equal to the back-pay award. Juries have been known to award sizable payouts in these cases based on related claims arising out of the unlawful activity. For example, in 2017, a former employee in New Jersey was originally awarded $51 million before a judge granted a new trial on the $50 million punitive-damages portion of the award. In June 2018, a California jury awarded a woman $31 million for her age-discrimination claims under the state version of the ADEA.

Avoiding Age Discrimination

In June, the U.S. Equal Employment Opportunity Commission issued The State of Age Discrimination and Older Workers to coincide with the 50th anniversary of the ADEA taking effect. One of the most significant changes in workforce demographics, according to the report, was the share of workers age 55 and older doubling over the past 25 years.

The Bureau of Labor Statistics estimates the workforce populations 65 to 74 and 75 and older will increase the fastest over the next eight years, with the oldest group of workers projected to increase by 75 percent by 2050. That’s compared to workers 35 to 54, a population expected only to grow by 2 percent in the same period.

As baby boomers continue to work, HR professionals should take steps to avoid age-related employment issues. Interviewers need to steer clear of asking applicants questions that hint at age, such as when someone expects to retire. Job postings should avoid instructing applicants with more years than required to not apply. Employers must document the reasoning behind each employment decision, regardless of an employee’s or applicant’s age. Companies should consider offering ongoing training to keep their employees aware of changes in technology that the company may utilize.

Finally, be sure to engage supervisors and employees with training on preventing age discrimination and how to internally report in the event of potential issues.

Paul Salvatore
Paul Salvatore is HRE’s Legal columnist. He is a member of Proskauer's executive committee and a former co-chair of its global labor and employment law department. He can be emailed at psalvatore@proskauer.com.