In the 1960’s, congress took significant steps towards ensuring equal opportunity for those in the workplace.  Such steps included the enactment of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, but efforts to include age as a protected characteristic under those statutes failed.  Finally, in 1968, the Age Discrimination in Employment Act (ADEA) went into effect to prohibit age discrimination in the workplace and promote the employment of older workers.  In honor of the 50th anniversary of the effective date of the ADEA, the Equal Employment Opportunity Commission (which enforces the ADEA) issued a report entitled “The State of Age Discrimination and Older Workers in the U.S. 50 Years After the ADEA.”

As pointed out in that report, to this day, some employers continue to make assumptions that age necessarily impacts an employee’s ability, performance or interest.  However, today’s older workers are more diverse, better educated, healthier, and working and living longer than previous generations.  Additionally, age discrimination remains a significant and costly problem for workers and employers alike, especially if the end result is time consuming and costly litigation.

In the light of the above, the EEOC report concludes with various practices which can be used by employers to take proactive steps to avoid age discrimination and claims made by employees alleging violations of the ADEA.  Those practices include:

  • Create a positive workplace culture: As indicated in the report itself, “[f]irst and foremost, workplace culture determines whether workers are valued without regard to age or whether they are devalued based on age. The leadership of an organization is obviously critical to creating and fostering a culture that is committed to a multi-generational workplace where all workers can grow and thrive.”
  • Recognize and reject stereotypes, assumptions and remarks: Organizations should make periodic assessments of its practices and policies to ensure the absence of outdated assumptions about older workers that could impact future decision making.
  • Include age in diversity and inclusion programs and efforts.
  • Utilize recruitment practices which prevent age bias: Employers should avoid limiting job qualifications to those based on years of experience, and job applications should not ask for an applicant’s date of birth or other age related questions (i.e. the mandatory inclusion of their year of graduation). Employers should also assess interviewing strategies to similarly ensure the use of age-neutral questions and the avoidance of age bias throughout the interview process.
  • Utilize effective retention strategies: As indicated by the EEOC, such retention strategies decrease unexpected turnover costs, the loss of institutional knowledge, and increase engagement and productivity. Thus, experts recommend providing career counseling, training and development opportunities for workers at all ages and stages of their career.

Employees should not be discriminated against based upon their age, and employers can take various steps to avoid unlawful assumptions being made about their older workforce.  Thus, the above recommendations made by the EEOC can be used not only to help employers comply with the ADEA but also create an overall workplace culture where its employees work in a positive and productive environment.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.