Ask HR: Is This Age Discrimination?

​SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, is answering HR questions as part of a series for USA Today.

Do you have an HR or work-related question you'd like him to answer? Submit it here. 

I have been passed over for promotion multiple times over the last few years. Those promotions always seem to go to younger workers. When pressed for reasons, I have heard some version of the response: 'We are looking for someone with more long-term prospects.' I've also been asked when I plan to retire in a couple of interviews. Is this possibly discriminatory? What can I do?  —James

Johnny C. Taylor, Jr.: This really makes my blood boil. To think that we are still holding on to the misguided belief that older Americans have limited value in the workplace is terrible. Not only does the law require employers to evaluate candidates based on their skill, experience and merit instead of age, race, gender or ethnicity, but it's also the only ethical way for employers to operate.

I'll start by saying age discrimination—which includes suggesting someone consider retiring due to their age—is real and prevalent in U.S. workplaces. According to the Equal Employment Opportunity Commission (EEOC), the number of age-related discrimination charges filed by workers aged 65 and over doubled from 1990 to 2017, and 36 percent of workers feel their age has prevented them from securing a job since turning 40.

Despite negative perceptions, workers aged 60 and above have proven themselves to be reliable, smart and hardworking. And as employers are struggling to retain workers during the Great Resignation, older employees are especially attractive because the data says they are less likely to exhibit workplace aggression, substance misuse, tardiness and voluntary absences.

Should you believe you were discriminated against based on your age, you could be protected by the Age Discrimination in Employment Act (ADEA), which forbids age discrimination against individuals who are aged 40 or older in any aspect of employment. You can file a claim with your state Fair Employment Practices office or the EEOC.

I encourage you to maintain focus on your experience, unique skill set and perspective in future interviews. If an interviewer broaches the subject of age, redirect the conversation. Share a story about how you demonstrated resourcefulness to achieve an objective or how you positively contributed to an overall team goal. Hopefully, the narrative will remain centered on the unique assets you would bring to the position.

I was recently offered a full-time direct position with the company where I am currently a contract employee. However, the salary offer is less than what I currently make as a contractor. I feel like not taking the offer will put my status as a contractor in jeopardy. What recourse do I have here? – Donna

Johnny C. Taylor, Jr.: To be candid, it isn't uncommon for employers to offer independent contractors lower salaries when they are converted to full-time employees. There are a few dynamics at play here.

One is the total compensation package. Employees tend to receive more comprehensive benefits than independent contractors and temporary workers. The value of total compensation—including salary, benefits and perks—may actually exceed your contractor salary.

Secondly, always remember there is more to gain from a job than pure compensation. I challenge you to see the situation from a broader career context. Examine what you can gain from the position outside of money. Will it expand your skills and capabilities? Can you make new connections in your field? Are there professional growth opportunities available to you as a permanent employee that may not be available to you as a contractor?

Now, all this being said, nothing prevents you from having an honest and respectful conversation with your company. If the company does not, for example, provide any benefits to offset the reduction in pay, the prospective employer may understand your concern and might consider increasing the offer. So, feel free to share your financial expectations for the position as you negotiate compensation.

Keep in mind, HR professionals are actively looking for several green flags during interviews. They are seeking to understand your character, how you comport yourself and your applicable skills for the position. Ultimately, they want to see how well you can represent the prospective employer. They want to see all you bring to the table. Conversely, you will want to understand all the benefits the position and the organization offer you. I hope you find a position that meets all of your needs.