The Human Resource
The Human Resource brings in industry professionals to talk about current HR issues as well as chatting about important HR topics.
The Human Resource
Let's Talk ADEA
We all know that age is a protected class under the EEOC and Title VII, but did you know that age protection includes it's own separate act from Congress? The Age Discrimination in Employment Act of 1967 is our topic in this episode — with information and details that are seldom reviewed or discussed. Sharpen your understanding of the definitions and protections provided to the baby-boomers in your organization.
Here's a topic that we haven't discussed in a while, age discrimination at work. And some of you are probably cringing and some of you are probably giggling. I received a phone call the other day from a group that said, "Well, we're ready to talk about retirement." I said, "Oh, okay. What does that mean?" "Well, you know, it's just so obvious he's just he's just not performing nearly like he used to. And come on, Pandy, he's going to be 65 in March. It's time for him to retire." If got somebody talking like that, you just want to squeeze them because yes, I understand their concern and I understand that the intent is all well and good, but that reminds me that we just don't talk about people's age and the protections available based on age. So let's, I mean, just jump in because this is important. This doesn't hurt to add as a conversation with your supervisors in management meetings every so often, because we've all got somebody over 40 years old working in our workplace.
Speaker:The Age Discrimination in Employment Act actually was first initiated in 1967, and it was
Speaker:created for all the right reasons. Congress wanted older individuals at the time, 40 to 65, to have some sense of dignity and and not to be treated differently. They wanted them to have the same opportunities, and that made complete sense because back then in 67, people still got pensions, they still had nice little retirements, they were still giving out gold watches. So people just didn't think about working past 65. It was just kind of an understood thing. Of course, our lifespan was different back then, too. But then in 1970, that cap of 65 actually changed to 70. So then our protected class was considered 45 to 70 under ADEA. But today, since 1986, the cap has been removed. Meaning if you have an employee that's 81 years old in your company, he or she can continue working as long as they're meeting the needs of the business and the position they were hired for, or the position that you have them in. We cannot, as employers or companies, start targeting or prepping individuals to say, " I think it's time." "Don't you have retirement plans?"
Speaker:Unfortunately, some of our younger generations that are coming up have just not been taught, and they get uncomfortable working with older workers. So this is for all of us to be reminded that ADEA is very much alive, and it actually comes in to play for almost everything having to do with employment, hiring and recruitment. You cannot turn someone away or use it as a bias that they are 20 or 30 years older than any of the other applicants. In fact, in some cases, I would think you would want that because of the experience. But if you go into almost any public place of employment now, you are going to see much older workers in the workplace simply because economically they have no choice. They have to apply for jobs, they have to get back into the workforce. So please understand discrimination starts at the hiring and recruiting uh stage. In fact, the article that I'm referring to actually talked about postings, job advertisements, and how you have to word them as a reminder to say you can't use keywords that refer to younger workers versus older workers. But then, of course, laying off or firing, forcing retirement, you absolutely have to be extremely careful with that. In fact, ADEA will actually require, for those of you who aren't real familiar, if you're going to lay off two or more individuals and they're over 40 years of age, you have to provide them with a list of every one being terminated, legally, you have to provide them with this list. Yes, I'm telling you, you have to provide them with a list of everyone who wasn't selected so that they on their own can somehow, review and determine, am I being discriminated against? And I'm certain that some of you aren't doing that.
Speaker:How about promotions and emotions? If you're going to deny a promotion because you don't think that somebody's going to be there long enough to work in that role, or you don't think that they're as animated or excited or as passionate about the job just because of their age, you're discriminating against them.
Speaker:The compensation, benefits, it's amazing how many people will look at me and go, "oh gosh, he doesn't need a raise. He's making plenty of money for his age. You know, how's he going to spend all this money?" I'm like, "just where do you come up with these comments?" You can't do that. Or excuse me, you shouldn't do that. You can do anything you want, but is it legal? No.
Speaker:How about job assignments and training? It's illegal to prevent somebody from getting additional training just because, again, you don't feel that the investment would be well spent. "I don't think, I have any guarantee that he's going to be here in two years." Well, you don't have any guarantee that the 20 or 30-year-old that you're going to train is going to be here in two years. So the reality is you treat everybody the same.
Speaker:Now, ADA does give companies a few little loopholes, but I offer these only as just fact. I'm not telling any of you that you need to run out and make sure that you can apply some of your jobs or your business to this. Remember, ADA applies to anyone with 20 or more employees and treat it kind of like FMLA. You look at a 20-week period somewhere in the current year or in the preceding year to determine whether you're eligible for falling under ADEA. Title VII, which also protects individuals from age discrimination, is 15 or more. So again, be cautious about who you are and whether this applies to you or not. But ADEA does offer the bona fide occupational qualification. And the BFOQ is based on whether the age limit must be reasonably necessary to the essence of the employer's business, or the employer must have a factual basis to believe either that all or substantially all individuals over the age limit would be unable to perform job duties safely and efficiently, or that if it's impossible or highly impractical to deal with older employees on an individualized basis. This is taking into account that some jobs are just almost impossible for someone of a certain age to perform safely. I'm talking about safely for them as well as the rest of the team. I'm not going to give you examples because I don't want some of you to just lock into it and go, oh, but Panty said, no, I want you to understand that BFOQ defense is mostly, commonly accepted in roles where public safety is a primary action. So think about what you expect, what you ask. And if there's any question, you know who I'm going to tell you to talk to. Yes, your labor law attorney.
Speaker:There's another clause, reasonable factors other than age. And what we're looking for here to evaluate a defense using RFOA is the EUC and courts want to consider the extent to which the factor relates to the employee's stated business purpose, whether the employer defined the factor accurately and applied it fairly to all employees, whether supervisors received clear guidance and training on applying the factor while avoiding age-based stereotypes, to the extent to which the employer limited supervisors' discretion for subjective assessments. Oh, that one's interesting. You caught that one, right? The supervisors don't get to determine whether the employer assessed potential adverse impact on older workers. And I would definitely make sure that is well researched and documented, and the degree of harm to older workers, and whether the employer took steps to reduce that harm is documented. Basically, for that one, you've got to make sure that you've done your homework. You cannot just come up with a couple of reasons.
Speaker:The last possible loophole for you is a bona fine seniority system. And I think I see these a little bit more often than I do others. It's unlawful for employers to observe the terms of a bona fide seniority system that's not intended to evade the purpose of this intent of the of the ADA clause. So for a bona fide seniority system, you must meet the criteria of the employee's length of service as the primary criterion for allocating employment opportunities and benefits, have essential terms and conditions communicated to all affected employees and be applied uniformly to all employees, regardless of age. I think, and again, I want to give you an example of that one, but I'm going to refrain. I think that one would be the most easiest to put through because if you're hiring people, telling them flat out, look, we will hire you today. This is not a contract, it's at will, but understand that by a certain age, it will be very possible that you will not be able to perform your duties. We understand that. We want you to be prepared to understand that it's open dialogue, but it certainly is not dialogue that I would recommend anyone exercising without the guidance of your labor law attorney. Also understand, too, that this requires just as much documentation as anything else under the EEOC.
Speaker:I have heard organizations wanting to claim undue hardship. "We can't accommodate somebody in their 80s because it's just too hard. They just don't move fast enough or they're not interested in the job, they don't come to our activities, you know, they just come to work and they do what we ask them to do, and they're just they're just not long term." I did a podcast on undue hardship for ADA. I would tell you right now that undue hardship under ADEA is just as difficult and maybe even, well, it may be even more personal. And I just would hate for you to get into a situation where you do something like this to an employee, and then you've got all your employees looking at you and saying, "Oh, okay, well, I'm going to be, that age in three or four years, you're going do the same thing to me."
Speaker:You see, all this comes down to what's in the best interest of the company. If you truly believe that someone is out aging their ability to do the job safely, to do the job correctly, or to meet the needs of the business, then okay. But do it with dignity and respect. And if you've got your documentation in order, if you have good reason to believe that there does need to be an alternative decision, then again, talk to a good consultant. And I mean a good consultant, or talk to your labor law attorney. Walk it through and see what scenarios are available to you.
Speaker:A D E A. You heard it right here. Thanks for coming. And again, thank you so much for the new listeners. I really, really appreciate it. We love you all. And again, the show is yours right here at the Human Resource.