ADEA – Workforce

Consider these headlines:

While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.

Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.

Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.

The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.

Insurance company Hiscox just released its 2019 Ageism in the Workplace Study [pdf], which revealed some sobering statistics about the growing problem of age discrimination for American employers.

The number of age-related discrimination charges filed with employers and the EEOC by workers aged 65-plus doubled from 1990 to 2017.
44 percent of employees report that they or someone they know experienced age discrimination in the workplace.
21 percent report they faced age discrimination themselves.
36 percent feel their age has prevented them from getting a job since turning 40.
26 percent feel there is some risk they could lose their current job because of age.
Only 40 percent who experienced age discrimination filed a charge or complaint.
Employers paid $810.4 million to settle age discrimination charges filed with the EEOC between 2010 and 2018 (excluding litigation).

These numbers are only going to get worse. By 2024, workers age 55 and older will represent 25 percent of the nation’s workforce, with the fastest annual growth rates among those aged 65 and older. Indeed, according to the Hiscox survey, 67 percent of surveyed workers age 40-65 plan to continue to work after they turn 66.

This trend is not without its cost to employers. Age discrimination hurts employers, and I’m not just talking about the $810 million paid in settlement costs.

It demotivates employees, which can hurt productivity, customer service, and product quality.
It causes a loss of talent and institutional knowledge, due to experienced workers leaving from a stalled career or hostile environment.
It causes employers to miss the opportunity of hiring and retaining workers who possess knowledge, experience, good judgment, and commitment to the job.

So, how can an employer help prevent age discrimination from permeating its workplace? The EEOC, in its State of Age Discrimination Report, published last year to commemorate the 50th anniversary of the ADEA, offers the following five suggestions.

1. Leadership needs to create and foster a workplace culture that is committed to a multi-generational workplace where all workers can grow and thrive, which extols ability and reject discriminatory stereotypes and words.

2. Employers and employees must recognize and reject stereotypes, assumptions, and remarks about age and older workers, and treat them no differently than stereotypes, assumptions, and remarks about sex, race, disability, national origin, religion, or other protected classes.

3. Companies should work to increase the age diversity of the workforce by hiring, retaining and engaging employees of all generations,

4. Businesses should implement recruitment and hiring strategies that avoid age bias by seeking workers of all ages and not limiting qualifications based on age or years of experience. These strategies should include training recruiters and interviewers to avoid ageist assumptions and common perceptions about older workers, assessing interviewing strategies to avoid age bias, and having an age-diverse interview panel for prospective employees.

5. Employers should develop retention strategies to keep older workers. I’ve written about this point before, which you’ll find here.

Tag: ADEA

COVID-19 is not an excuse for age discrimination

New Study Says Age Discrimination Remains a Persistent Issue for Employers