Take a Quick Scan of Your Job Descriptions
Do they ask for “a recent graduate,” a person “with 1-3 years of experience,” a “digital native” or worst of all, someone who would be a great fit for your “young and cool” team? Do you have an age requirement for certain jobs (excluding businesses that sell alcohol and require the person to be at least 21 years old, of course)? If so, your company could be headed to the courtroom to defend itself against an age discrimination lawsuit.
Workers Ages 40+ Aren’t the Only Protected Class
In 1967, President Lyndon Johnson passed the Age Discrimination in Employment Act (ADEA), which is designed to protect job candidates and employees 40 and up from age discrimination in the workplace. While it doesn’t shield people who are under 40 years old, some jurisdictions do have laws on the books that do offer protection to younger workers. The ADEA was a positive step to protect workers’ rights, but age discrimination (whether intentional or unintentional) is still happening in every industry and job sector today.
The ADEA Took a Hit in 2009
Unfortunately for people over the age of 40, a 2009 Supreme Court decision weakened the ADEA. The ruling made it much more difficult for job candidates or employees to demonstrate that they’ve been discriminated against because of their age as opposed to those who allege they’ve been discriminated against due to their race, gender or religion. Even though Equal Employment Opportunity Commission (EEOC) attorneys found reasonable cause to pursue only 3.1% of claims on average, it’s still important to ensure that your internal policies and practices aren’t discriminatory against older employees.
What Exactly Does the ADEA Cover?
The ADEA applies to, “private employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government.”
The law prohibits harassment and age discrimination in every part of the employment lifecycle including:
- Hiring
- Salary
- Assignments
- Promotions
- Benefits
- Training
- Firing and layoffs
Harassment can include offensive or insulting comments referring to a person’s age, such as a manager repeatedly calling an older employee “over the hill” or saying they’re “behind the times.” The law doesn’t forbid playful banter, for example several team members joking around at an in-office birthday party. The behavior becomes harassment and discriminatory when the remarks are so unyielding that it creates a hostile work environment, or it results in the employee being demoted or even fired.
Every state has their own age discrimination policies that apply to employers with fewer employees than the 20 required by the federal law.
How to Identify Discriminatory Practices
Most forms of harassment in the workplace are overt and easy to identify. Age discrimination can be more subtle such as in the job description phrases we mentioned above. Another example: Say your company has a group layoff that affects a majority of your over-40 employees and leaves behind those who are under 40 and make less money. This action could be viewed as discriminatory.
Language to Include in Your Employee Handbook
The language you use in your employee handbook can be as simple and inclusive as this:
[COMPANY NAME] is committed to a diverse workforce, and it is our policy to provide an equal employment opportunity to all candidates and employees.
We do not discriminate against anyone based on race, ethnicity, religion, gender, sexual orientation, disability, age or any other characteristic protected under federal, state or local law. Any reports of discrimination are taken very seriously. They will be investigated, and disciplinary measures will be taken.
Maintaining compliance is essential for employers to prevent crippling liability. The best way to mitigate risk is with a knowledgeable partner. Paycor is proud to keep more than 30,000 organizations informed and compliant with federal and state laws and regulations. Talk to a Paycor representative to learn how we can help you avoid fines and penalties.
The information provided is for educational purposes only; it is not legal advice. Always check regulations to help ensure compliance.
