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Tag: Equal Employment Opportunity Commission

Posted on December 6, 2016August 31, 2023

Boomer Bust — Ageism in the Workplace

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Tony Cortese of Herman Miller, left, and Amy Hiles-Maynard offer thoughts and experiences regarding age bias at work.

Amy Hiles-Maynard knew that the odds were against her when she found herself job-hunting at age 62. So she pulled out all the stops.

In addition to updating her resumé, Hiles-Maynard overhauled her social media pages with professional headshots and upbeat posts worded to convey youthful exuberance. She dyed her salt-and-pepper hair, revamped her wardrobe and scoured websites for older women that offered tips on acing job interviews and turning back the clock with clever makeup techniques.

“I’ve learned that mascara for someone who is older should never be worn on the lower lashes,” said Hiles-Maynard, a former travel industry executive. “It casts a shadow and makes you look tired.”

She searched for role models of a certain age and found her fashion muse in actress Susan Sarandon, who according to one article, favors white tuxedo shirts. Hiles-Maynard bought one.

She even resorted to stalking the parking lots of prospective employers, studying what people wear to get a sense of the company culture.

“I sat in my car with my cellphone and took the occasional photo of someone who looked particularly nice and noted differences between people in entry-level positions and those in business suits,” she said. “It was a humbling experience.”

While her methods might seem extreme, her struggles to rebuild a career at an age when many people plan to retire are likely to be familiar to people over 45.

The number of older workers is on the rise. As their ranks grow they will play an important role in the U.S. economy, according to the National Council on Aging. By 2019, more than 40 percent of Americans over 55 will be employed, making up more than one-fourth of the U.S. workforce, according to the not-for-profit advocacy group. In 2014, older workers made up 22 percent of the workforce, according to the council.

Today’s mature workers are generally healthier and more active than their predecessors and offer a wealth of experience and knowledge, yet they are far more likely to experience age-related job discrimination than their younger counterparts, according to a 2013 study by the AARP. In fact, age discrimination complaints filed with the Equal Employment Opportunity Commission have increased dramatically in recent years. Between 1997 and 2007, 16,000 to 19,000 annual complaints were filed, compared to 20,000 to 25,000 filings per year since 2008, according to the EEOC.

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“It was clear that they were expecting someone younger. It seemed like they were thinking, ‘She can’t cut it.’ ” — AMY HILES-MAYNARD

The notion of retirement is changing with workers staying on the job longer than ever before. While some companies believe older employees provide a competitive advantage, most cling to outdated stereotypes, according to Ruth Finkelstein, associate director of the Robert N. Butler Columbia Aging Center at Columbia University.

“We are comfortable making fun of old people and we do it routinely,” she said. “Ageism is alive and well. We show old people as decrepit, ugly, forgetful, yet at the same time many of the most powerful people in the world are old. The pope is old, the presidential candidates (were) old, most members of Congress are old, and the Supreme Court justices are old. There is this really weird disconnect.”

The most common stereotypes of older workers are that they are expensive to employ and to insure, they are slow learners and they lag technologically, according to Finkelstein.

“The idea that older workers are more expensive to employers has been hard to prove,” she said. “Many don’t want to work full time so if there is more flexibility, such as job sharing or phased retirement, you get the benefit of their knowledge and experience without the determinant of higher cost. Also, when it comes to the idea that older workers are most expensive to insure, as rules around health insurance change, Medicare becomes the primary payer and the employer becomes the secondary payer. Then these workers become bargains.”

Ageism, or discrimination based on someone’s age and not objective performance criteria, is one of the last “isms” to be tolerated in the workforce and is far more socially condoned than sexism or racism, according to a recent report by the Society for Human Resource Management Foundation. In fact, about two-thirds of older employees say they have seen or experienced workplace discrimination and an overwhelming 92 percent say that it’s common, according a 2013 study by AARP.

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“Our belief is that if we can continue to invest in employees irrespective of where they are with their career we will have a much stronger workforce.” — TONY CORTESE, SVP PEOPLE SERVICES, HERMAN MILLER

While the federal Age Discrimination in Employment Act of 1967 protects workers over age 40 from harassment and discrimination in all aspects of employment, such as hiring, firing, training and promotions, such cases are extremely hard to prove, said Laurie McCann, a senior attorney with AARP.

“Age discrimination is viewed by the courts and society more as an economic issue and we defer to the employer’s prerogative,” she said. “Even employees will say, ‘Well it’s their business and I understand why they want to save some money.’ But you wouldn’t say that if the employer said, ‘We want to save money so we’ll get rid of all of the women,’ but we tolerate it when it’s age.”

Age discrimination in hiring is even harder to prove, which accounts for the high number of older workers who are long-term unemployed, according to McCann. While the overall unemployment rate for older workers is slightly lower than the national average, nearly half of all those who have been out of a job for more than six months are over 50, according to the Bureau of Labor Statistics.

“You’re putting all these resumés out there and they’re going into a black hole,” said McCann. “You don’t know who got called for the interview or why, so it’s hard to prove that age was a factor.”

It didn’t take long for Hiles-Maynard to conclude that her age was working against her. Although she had decades of executive experience in the travel industry, nearly all her cover letters went unanswered. When she did get an interview, she said that the look on the interviewer’s face spoke volumes.

“I could tell that they were surprised,” said Hiles-Maynard, who was laid off from her job as vice president of marketing for a cruise ship line in 2013. “It was clear that they were expecting someone younger. It seemed like they were thinking, ‘She can’t cut it.’ ”

After losing her job, Hiles-Maynard spent time in the vacation rental business with her husband and had a short stint at an advertising firm, but her goal was to return to the industry that she loves. She was starting to lose hope when earlier this year she read an article in Forbes magazine about an internship program for older women at a New York advertising agency. The firm’s founders were inspired to create the program after watching the Robert De Niro film “The Intern.” In the movie, De Niro plays a retired executive who applies to a senior citizen internship program at a fashion startup.

Called an “enternship,” the program at Wunderlich Kaplan Communications is designed to help older women return to the workforce with updated skills, like using social media and personal branding, according to Gwen Wunderlich, cofounder and CEO.

“You can’t say I’m too old, I don’t know this,” she said. “You need to project confidence.”

Please also read: Creating an Age-Friendly Workplace

The notion that older workers are resistant to change doesn’t fly at furniture design firm Herman Miller, according to Tony Cortese, senior vice president of people services. The Zeeland, Michigan-based company is frequently recognized for its efforts to attract and retain older workers.

“Our belief is that if we can continue to invest in employees irrespective of where they are with their career we will have a much stronger workforce,” said Cortese. About one-fourth of its 8,000 employees worldwide have been there for at least 20 years.

In addition to continued training for older workers, Herman Miller also offers a phased retirement program that allows employees to gradually exit the workplace by reducing their hours.

“We recognized that we’re poised for a significant amount of potential retirements in the next decade,” Cortese said. “Phased retirement gives us more time to think about how to transfer knowledge and it helps the employee be deliberate about their retirement planning, both economically and socially. There is a significant psychological change that comes with retirement.”

One of the more unique programs that the company offers is a mentorship program called “water carriers.” The concept is based on the idea that older workers carry institutional knowledge that must be passed on to the younger generation.

“When somebody has been somewhere for a long period of time they’ve probably developed job skill expertise and know how to navigate the culture,” he said.

Employers who are not actively trying to retain and hire older workers are missing a golden opportunity to boost their bottom line, according to Kathleen Christensen, director of the Working Longer program at the Alfred P. Sloan Foundation, a philanthropic organization based in New York.

“If they are thinking of older workers at all, they are thinking only about graceful exits,” she said. “It’s a major missed opportunity for American businesses. They are framing the question in terms of how will our older workers leave, rather that how can we harness the potential productivity of our older Americans. That’s the real challenge.”

Rita Pyrillis is a freelance writer in the Chicago area. Comment below or email editors@workforce.com.

 

 

Posted on September 23, 2016June 29, 2023

Stay Out of My Hair. Deal With My Work

This week, in a 3-0 decision, the 11th Circuit Court of Appeals dismissed a case brought by the Equal Employment Opportunity Commission against an Alabama company that rescinded a job offer because a black woman refused to cut off her dreadlocks.

I don’t want to, but I can see two sides in the issue. Dreads are a hairstyle; they aren’t an “immutable trait,” as the court says. They often have spiritual significance, and they take a lot of time and effort to grow and care for, but they are a hairstyle.

If they’re long and the person works around machinery where they might get caught, or in a kitchen where they might flop into the soup, OK, let’s regulate it — just as you would long hair of any type — hello hair net. Or, if an employer feels that a certain hairstyle is inappropriate for their particular workplace — a hair salon with a predominantly white customer base — it makes more sense for them to say you don’t meet our internal or external aesthetic. That too has its iffy sides, but I get it. Here, however, we’re not talking about a kitchen or a plant filled with dangerous, heavy machinery. We’re not talking about a salon filled to the brim with little old white ladies with beehives and blue-tinted bouffants. We’re talking about customer service. I’ll get to that in a minute.

With this ruling, we’re now walking a fine, fine line. If the Supreme Court can ban dreads from the workplace — a hairstyle almost exclusively favored by people of African descent, what’s next? At some point in the future, will my employer be legally able to force me to get a perm if they decide my curl pattern’s not right for the office?

The company involved in the incident that kicked it all off openly stated that this was a grooming issue. A piece published in Elle recounted the tale:

“In 2010, a woman named Chastity Jones received a job offer from Catastrophe Management Solutions in Mobile, Alabama. But according to Jones, a white human resources manager took issue with her dreadlocks, saying the style was against company policy because dreadlocks “tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” ’

 

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Dreadlocks were at the center of a case recently decided by the federal 11th Circuit Court of Appeals.

Um, no. No I don’t. Actually, wait. I have seen some extremely messy dreads before — on white people’s heads. Sorry, guys. Certain textures of hair don’t work as well in certain hairstyles. It’s just a universal beauty shop truth.

But let’s dig into to that HR manager a bit. The woman openly said that dreads — also known as black, natural hair — are messy. There’s so much wrong with that, I don’t think I have enough strength in my fingers to type/battle it out. But ultimately it goes back to a not uncommon belief that natural black hair is offensive, dirty and ugly. Why? It doesn’t conform to the accepted standard of beauty. Comedian Paul Mooney said it best: If your hair is relaxed, white people are relaxed. If your hair is nappy, they’re not happy.

Black hair has always been political, not to mention an endless source of curiosity. I’ve blogged more than once about incidents in the news where some poor black person’s body became the equivalent of a petting zoo for an unexposed person who regressed to toddler age and couldn’t keep their hands to themselves.

I’m no legal eagle; I don’t know the ins and outs of the case and the deliberation process that produced the final ruling, but it seems like one key side of the issue has been woefully neglected: Would Chastity Jones’ hair prevent her from giving excellent customer service? No. Not unless someone wrapped one of the dreads around her throat, and she couldn’t talk.

An unstated opinion or a belief rooted in bias should not be allowed to dictate policy. We can throw legal terms, arguments and Title VII of the Civil Rights Act of 1964 around all day, but at the root this is about a perceived lack. Jones was judged not on her performance but on her appearance. Whether the employer’s decision to discriminate or behave in a biased and prejudicial manner was ultimately deemed legal or not, this woman was quietly labeled unattractive, and she lost the means to make a living because of it.

When it comes to the workplace we need to ask ourselves, what’s more important? Perception or performance?

Kellye Whitney is the associate editorial director for Workforce. To comment, email editor@workforce.com.

Posted on September 11, 2012June 29, 2023

Testing Employees for Legally Prescribed Medications Must be Done Carefully

A recent settlement announced by the Equal Employment Opportunity Commission points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.WF_WebSite_BlogHeaders-11

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the Americans with Disabilities Act.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.


 

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