EEOC Invites Comments on Age Bias During ADEA’s 50th Year

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The Age Discrimination in Employment Act (ADEA) has reached the milestone of middle age—the time in life when we assess our accomplishments and take a fresh look at how things have changed over time, said Victoria Lipnic, acting chair of the Equal Employment Opportunity Commission (EEOC).

Speaking at a public commission meeting on June 14 marking the ADEA's 50th anniversary, Lipnic said the principle of the ADEA is that ability matters—not age. That's more relevant today than ever, she added, because there are many more older individuals who need to work and our economy needs them to remain in the workforce.

Experts challenged the commission to ramp up its enforcement efforts and shared how they think HR professionals can help reduce age discrimination in the workplace.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Still Work to Do

The ADEA was enacted in 1967 and protects most job applicants and employees who are ages 40 and older from discrimination based on age in employment decisions, such as hiring, promotion, termination and compensation decisions.

Lipnic said age discrimination not only hurts older workers and their families, but it also hurts the overall economy.

Although the ADEA and similar state laws have made great strides in reducing age discrimination in the workplace, older workers still face employment barriers. Lipnic noted that such discrimination affects workers of all races, ethnic backgrounds and income levels—and that women have filed more age discrimination claims with the agency than men in recent years.

"Just as we would not make assumptions about a woman's interests or abilities, we should not make assumptions about her because she has reached a certain age," Lipnic said, adding that she hopes society can move beyond outdated assumptions based on age as they relate to a worker's skill set.

Focus on Qualifications

President Lyndon B. Johnson—who signed the ADEA into law 50 years ago—said employers should focus on which candidates have the best qualifications for the job. EEOC Commissioner Jenny Yang said this remains the cornerstone of anti-discrimination efforts today.

Yang said the following practices harm older workers:

  • Putting caps on experience levels in job advertisements (like requests for candidates with "up to five years" or "three to five years" of related experience).
  • Having a mandatory retirement age.
  • Asking for job applicants that are "digital natives" who grew up with technology as opposed to those who learned it later in life.  

The agency's recent $12 million age bias settlement with Texas Roadhouse highlights the need for better workplace policies, Yang noted. In that case, the EEOC alleged that the restaurant chain violated the ADEA by refusing to hire older workers for front-of-the-house positions—like servers, hosts and bartenders.

Although Texas Roadhouse didn't admit to any wrongdoing, it agreed to the settlement terms, which included a commitment to changing its policies and practices.

The challenge for society is to change the way people who hire employees think about older workers, noted EEOC Commissioner Chai Feldblum.

Solution to the Skills Gap

The currently low unemployment rate has created an opportunity for employers to improve their hiring practices, said John Challenger, CEO of Chicago-based global outplacement firm Challenger, Gray & Christmas.

HR and talent acquisition specialists can't find enough workers to address the skills gap—particularly for tech jobs—he told the commission, adding that the economy suffers if companies must put expansion on hold because of a skills gap.

Hiring older workers provides a solution, Challenger said, but recruiters have to know how to reach these candidates. He noted that older workers may not be active on recruiting websites or have LinkedIn profiles.

"When employers leave talent on the table, they lose out—we all lose out," said EEOC Commissioner Charlotte Burrows.

Preventing Age Bias

"Biases can be explicit or implicit, real or imagined … but our impulse to create social categories is practically unavoidable," said Jacquelyn James, Ph.D., co-director of the Center on Aging and Work at Boston College. "Thus, it is unlikely that we can eliminate them entirely, no matter how well-intentioned we might be."

That's why HR managers must develop strategies to prevent biases from entering into employment decisions. For example, she said, HR professionals could implement the following recruiting and interviewing strategies:

  • Assess the extent to which hiring workers of diverse ages can support organizational goals.
  • Consult various sources of myths and misconceptions about older workers.
  • Review recruitment strategies to make sure that they are targeting workers of all ages.
  • Develop an age-friendly website that includes images of employees of all ages.
  • Develop an age-diverse interview panel for prospective employees.
  • Know the do's and don'ts of interviewing to avoid lawsuits of all types including age-bias claims.
  • Provide a standard interview process for hiring managers.

Laurie McCann, senior attorney for the AARP Foundation Litigation, challenged the EEOC to take a stand and strengthen its age-bias-related enforcement efforts. "The ADEA should not be treated as a second-class civil rights statute," she said.

The agency will hold the meeting record open for 15 days and has invited the public to submit written comments on matters discussed at the meeting.

 

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