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If you think that workers are like fine wine and improve with age, it doesn’t violate the federal Age Discrimination in Employment Act (ADEA) to target their recruitment, according to a proposed rule issued by the Equal Employment Opportunity Commission (EEOC).
The EEOC’s Aug. 11 proposed rule doesn’t mean employers have to target the recruitment of older workers, Raymond Peeler, a senior attorney adviser with the agency, told HR News. But as long as such targeted screening does not screen out others unlawfully, the EEOC does not view it as a violation of the ADEA.
The proposed change is in response to a Supreme Court decision two years ago (General Dynamics Land Systems Inc. v. Cline, 540 U.S. 581 (2004)), which concluded that there is no such thing under the ADEA as “reverse age discrimination.”
Relying on the current ADEA regulations, a group of employees between the ages of 40 and 50 had challenged their employer’s decision to eliminate its future obligation to pay retiree health benefits to any worker then under 50 years old while preserving future entitlement to such benefits for older employees. The plaintiffs noted that the EEOC’s ADEA rule prohibited any age-based preference between persons age 40 or over, regardless of whether treatment favors older or younger persons.
The Supreme Court found that the regulation was “clearly wrong,” stating that “if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40.” In addition, the court found that there was no evidence that younger workers suffered when their elders were favored.
In response, the EEOC proposed amending its ADEA regulations to reflect the ruling. While the regulations currently prohibit job advertisements favoring older persons, the proposed rule would, among other changes, clarify that it is permissible to encourage relatively older persons to apply. “Employers may post help-wanted notices or advertisements expressing a preference for older individuals with terms such as over age 60, retirees or supplement your pension,” the proposed rule states.
“I would have said it was OK before,” but now the targeted recruitment of older workers has the EEOC’s official imprimatur, Ann Reesman, general counsel with the Equal Employment Advisory Council, told HR News.
“Look for a word other than ‘older’ ” when targeting the recruitment of seniors, recommended Deborah Manning, SPHR, director of recruitment and affirmative action with Dynegy Inc. and a member of the Society for Human Resource Management’s (SHRM) Workforce Staffing & Deployment Special Expertise Panel.
The word “older” could be negative for some people, she explained. Manning said she has gotten a better response to ads that seek “seasoned and mature candidates.”
The targeting of seasoned workers often requires creativity when placing ads. Some older workers may not be looking for jobs in want ads.
Bingo and beyond
So, Manning has placed ads at assisted living homes, nursing homes and clubs that might be frequented by seniors. “For Houston, that’s bingo halls,” she said. Manning said she might try a variety of ad placements, including radio and even television, even though that’s expensive, because many older workers are home during the day.
There are many advantages a mature worker often brings, she reflected, including work experience, a strong work ethic and a focus on doing the best job that can be done rather than climbing the corporate ladder.
Dorothy J. Stubblebine, SPHR, a managing principal in DJS Associates and the former head of HR for a Fortune 150 pharmaceutical company, said that she too has heard much anecdotal evidence of employers being “very satisfied with older workers.” Stubblebine said they often are very dependable and on time with good work ethics. Furthermore, they know what it’s like to be without work.
When recruiting retirees, Stubblebine said, it’s particularly important to listen to what their needs are. “Say, ‘What do you need?’ ”
She said some older workers may dislike the morning commute and request coming in an hour later or having a reduced work schedule. Or they may prefer more vacation or job sharing, which Stubblebine described as a “terrific way” to recruit good people.
Of course, employers “are not social service agencies,” she said, but listening is key to recruiting or retaining any valued person, she observed. And as more baby boomers retire, employers will be “wise to consider them,” added Stubblebine, who also serves on SHRM’s Workforce Staffing & Deployment Special Expertise Panel.
Joseph P. Murphy, principal and vice president of Shaker Consulting Group Inc. and a special expertise panel member, agreed. He called the targeted recruitment of older workers an “effective recruitment strategy.”
Older workers often are more stable, he noted. And they can be a great source for relieving labor shortages. Shortages not only are expected as baby boomers retire, but also arise, for example, when employers hire more part-time workers for workflows that vary during the day. Murphy noted that one of Shaker’s clients, a large bank, targets seniors to fill part-time positions when demand surges during lunch.
And he recalled a case study of a call center with 24/7 staffing that was built across from a retirement community. Murphy said burnout often is high in call centers, so the call center allowed more flexible, two-hour scheduling. The call center had an over-the-road bridge to make it easier for retirees to work, including insomniacs who might prefer working at night.
Murphy said the EEOC’s proposed rule should be a “wake-up call” to HR professionals. If HR doesn’t have an active strategy to target the recruitment of different populations, its organizations will be affected adversely, he predicted.
Reesman said it would be worthwhile for employers to consider endorsing the EEOC’s proposed green light for the targeted recruitment of older workers. Written comments should be sent by Oct. 10 to: Stephen Llewellyn, acting executive officer, executive secretariat, EEOC, 1801 L St. NW, Washington, DC 20507.
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Time Is on Their Side, HR Magazine, February 2006.
Some Companies Face Talent Dearth, Verdict Still Out for Others, Recruiting & Staffing News, August 2006.
Attracting and Retaining the Mature Workforce, SHRM Competitive Practices Series, November 2005.
For the latest HR-related business and government news, go daily to www.shrm.org/hrnews
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