BFV Perspectives, BFV Videos, Sports Fans Guide 2 HR, | Dec 18, 2018

Age Discrimination Persists – Even in Pro Hoops

The Equal Employment Opportunity Commission (EEOC) has published a report on “The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA).”  One of the main points of the report is that age discrimination remains a significant and costly problem.

Age Discrimination Charges Filed by Older Workers Are on the Rise

It is not surprising that as the age of the US workforce has increased considerably over the past decades, the number of charges filed by workers 55-64 has also increased and now outnumbers the charges filed by younger age cohorts.  

The report states: “Unfounded assumptions about age and ability continue to drive age discrimination in the workplace. Research on ageist stereotypes demonstrates that most people have specific negative beliefs about aging and that most of those beliefs are inaccurate. These stereotypes often may be applied to older workers, leading to negative evaluations and/or firing, rather than coaching or retraining.”



Tips to Avoid Age Discrimination

Against this backdrop the EEOC report provides tips for employers to avoid age discrimination claims. 

  1. Include age in diversity and inclusion programs and efforts. Age diversity can improve organizational performance and lower employee turnover.  Studies find that mixed-age work teams result in higher productivity for both older and younger workers.
  1. Seek age diversity in recruitment. When posting jobs on websites and social media, include age-diverse photos and use language that does not suggest a preference for younger workers. It is also important to train recruiters not to make ageist assumptions about older workers. For example, the assumption that younger workers will remain employed by the company for a longer period of time is flawed.  The EEOC Report explains that Millennials leave their employers, on average, sooner than older workers who provide longer tenure.
  1. Implement retention strategies to reduce turnover. Effective retention strategies decrease turnover.  According to the EEOC Report, age is positively correlated with employee engagement, as workers age 50 and older have the highest levels of engagement in the workplace.  Providing career counseling, training and development opportunities to workers of all ages can go a long way to increase engagement, productivity and stability.   

Additional Tips from the NBA

LeBron James was not the only “James” to depart from the Cleveland Cavaliers after last season.  Former assistant coach, James Boylan, did not have his contract renewed this year.  Unlike Lebron James, Boylan’s departure was not voluntary.  In fact, Boylan, age 63, filed a lawsuit against the Cavaliers claiming that he was terminated because of his age. 

The complaint alleges that Boylan received a voicemail message from then-head coach Tyrone Lue, in which Lue said that the majority owner and the general manager decided not to extend his contract because it was “way too much money” and the GM “wants to go younger in that position.”

So, here are two more practical tips employers can glean from this lawsuit to avoid an age discrimination claim: (1) do not notify an employee of a termination in a voice mail; and (2) do not make an ageist comment when notifying an employee of a termination.

Moving Forward   

The EEOC report makes the case that discriminatory practices continue today to deny older workers equal opportunity, often because of negative stereotypes.  With the age of the workforce increasing, employers should take proactive steps to ensure its practices are free of age bias throughout the employment life cycle.   Now is the time to:

  • Make sure your job application asks lawful questions and does not seek information that is not permitted;
  • Train your management team about age discrimination, especially those who are involved in the hiring process. They need to know that it is not okay to ask questions that would reveal a candidate’s age or make comments that infer a preference to hire younger employees. 
  • Avoid making ageist comments.
  • Ensure that lawful criteria are used when making termination decisions. For example, in conducting a reduction-in-force it is important to develop criteria and apply it consistently without bias.  
  • Work with your employment attorney to ensure that your company’s form releases comply with the strict requirements of the Older Workers Benefit Protection Act so that any age discrimination release is valid.

Taking these steps are important and can go a long way to avoid a claim of age discrimination.

BFV Perspectives, BFV Videos, Sports Fans Guide 2 HR, | Dec 18, 2018
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.