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A former judge advises employers on avoiding charges of age discrimination
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A Napa Valley winery faces allegations of age discrimination in a suit filed late last year by a 58-year-old former employee who claims the organization refused to hire anyone over the age of 40 and asserted that her age was the reason she was fired.
Another lawsuit filed in December charged that several U.S. employers—Amazon, T-Mobile US Inc. and Cox Communications—discriminated against older workers by placing recruitment ads on Facebook that showed up only on the feeds of younger users.
"There does seem to be a lot more activity in the courts trying to hold employers accountable for what seems to be epidemic age discrimination," said Patricia G. Barnes, J.D., an attorney and nationally known expert on employment discrimination and workplace abuse. "The biggest issue is age discrimination in hiring."
Barnes is a former judge in Nevada and the author of Overcoming Age Discrimination in Employment: An Essential Guide for Workers, Advocates & Employers (2016) and Betrayed: The Legalization of Age Discrimination in the Workplace (2014).
"A big problem for HR is dealing with implicit bias," she said. "HR people really need to be on top of research and do some reading about issues of aging and stopping stereotypes when they encounter [them]." The media is partly to blame, she added, often depicting older workers as frail and slow.
The National Bureau of Economic Research looked at more than 40,000 job applications in 2015 and found "robust evidence of age discrimination in hiring against older women, especially those near retirement age."
[SHRM members-only toolkit: Employing Older Workers]
Barnes shared her insights on workplace age discrimination with SHRM Online and offered advice to HR on how to avoid ageist practices.
SHRM Online: There seems to be a disconnect between employers saying they want employees with proven experience yet hiring employees who are too new to the workforce to have proved much of anything. What's going on here? Do older job candidates need to hide their experience as well as their graduation dates to be considered for jobs these days?
Barnes: Talk is cheap. There's a lot of evidence that employers have many tools at their disposal to limit who sees the job vacancy and who applies and who is considered. For many years, older workers have had to hide their experience and dates of graduation. At this point … it's not possible to hide how old you are. Computer algorithms are very good at ascertaining a general age for an applicant. And ultimately, at some point we all look our age.
SHRM Online: Is there an age where the worker is considered "old"? And, if so, what is that age? Barnes: It depends on the industry. Age 30 is old in Silicon Valley, age 50 is ancient, age 65 is Paleolithic. There is a lot of research showing the average age of the Silicon Valley worker is much younger than in the nontech industry. Outside of the tech industry, it depends on other factors like gender. Employers start thinking women are old when they are in their mid-40s, whereas men are considered old [when they reach] their mid-50s. I think it's because women are burdened by ageism and sexism. If you're 50, you're not the hot young thing in the office. In some industries like sales and restaurants, there's a premium on [youth]. Employers think youth drives business.
An 11th Circuit Court ruling that favored the RJ Reynolds Tobacco Co. was a setback for older job candidates applying for employment at organizations in Alabama, Florida and Georgia because it meant job applicants in that circuit are not protected by the [Age Discrimination in Employment Act]. [Editor's Note: The court found that only employees—not applicants—can bring charges of disparate impact.]
SHRM Online: Did the advent of social media and new technology shift how we view older workers?
Barnes: As young workers, we may have admired the fact that older workers had experience we didn't have. But, from an employer's perspective, I think admiration for age is found mostly in Norman Rockwell paintings. It's mostly a cost consideration, and older workers cost too much. Today older workers are unofficially and secretly barred from [being hired for] almost all substantive work activities. [Technology] is making it [easier] for employers to discriminate against older workers by using computer algorithms to screen out their job applications.
SHRM Online: When we speak of "age discrimination," the assumption is that we are taking about discriminating against older workers, but is discrimination against younger employees a problem too?
Barnes: "Discrimination" is a legal term. The Age Discrimination in Employment Act of 1967 (ADEA) only protects people ages 40 and older. When you talk about discrimination against younger workers, it doesn't exist in the legal sense of the word. I'm sure younger people do face some discrimination … but, when you're older, it can be a terrible, devastating [economic] blow you can never recover from.
Barnes' Advice to HR
Barnes offered HR professionals the following advice on protecting their organizations against charges of age discrimination:
1. Use age-neutral language in job advertisements. Avoid using language such as "recent graduates" or "digital natives" in job postings. While it's not illegal per se to advertise for digital natives, such language could be used as evidence to show age discrimination. Anything you do that treats older workers less favorably than others creates legal risk. Instead, use terms such as "entry-level" or "senior-level" when describing job openings. And don't limit hiring strategies to college campuses; broaden your recruitment efforts.
2. Consider all applicants. Don't make assumptions about older workers, such as assuming they will retire soon. Many can't fall back on private pensions anymore and may be at your organization longer than younger employees. And it's quite possible an older worker would like to perform an entry-level position.
3. Do not use social media or search engines to find out applicants' ages.
4. Have an age-diverse panel that interviews and evaluates job candidates on the knowledge, skills and behaviors required for the job, and not on subjective factors that can lead to implicit bias.
5. Create or task a company committee or management team to discuss how the company is going to attract and retain older workers—such as the policies and benefits the organization should incorporate—and how the organization can use the experience and talents of its older workers.
6. Make sure your antiharassment policy covers ageism. Employers acknowledge racism and sexism, but ageism has been tolerated and ignored. Try conducting an audit of the ages of your employees, much as you would conduct audits of the race and gender of your workplace population.
7. You should not focus on age when you lay off employees. That could be infused with ageist perceptions—that the older workers are going to retire anyway, for example. If staff cuts are necessary, try to base them on objective considerations that don't lend themselves to perceptions of age discrimination.
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