"Ageism is really one of the last acceptable 'isms' that society tolerates," says AARP senior advisor Heather Tinsley-Fix.
How do we best combat ageism and age discrimination in our workplaces? Here are 6 suggestions.
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A new manager takes away a pet project from a long-term 60-year-old employee, repeatedly asks him when he's "going to retire," calls him "Uncle," and criticizes his "old skills." Those are the basic facts that caused the 6th Circuit to reverse a grant of summary judgment to the employer in Sloat v. Hewlett-Packard Enterprise Co.
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Yesterday, #ElderlyChristmasSongs trended on Twitter. Yes, it’s meant to be a joke, and, yes, some were even funny. Now here’s the part where I get to play Employment Law Scrooge.
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Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to Fortune.com, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”
“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”
“This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global
“I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney
Let me offer a counter-argument. I’m 42 years old, more tech savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.
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I do a lot of speaking. One speech that I’ve been giving over the past couple of years is entitled, “X+Y+Z = A Generational Mess for Your Workplace.” I teach how employers can best manage the diverse needs and abilities of four different generations of employees. I discuss some broad-based generalizations about Traditionalists (age 70+), Baby Boomers (50-69), Gen X (35-49), and Gen Y (under 35). I always finish by discussing the very real risk of age discrimination if you treat these generalizations as gospel, and do not treat each employee, of age any, as an individual, with individual talents and abilities.
Target saw the need to offer the same type of training to its managers, but it left off the part about age discrimination. Gawker (h/t Business Management Daily) published Target’s training materials, entitled, Managing Generational Differences,” which, among other things, describe its oldest workers as “slow to adapt to change,” “rarely question[ing] authority” and see[ing] technology as “complex and challenging.”
When you are sued for discrimination, your training materials are fair game in litigation. While you write them to aid your employees, you must do so with (at least) one eye on the jury that will read them during trial. You do not want to have your manager explain to a jury, in an age discrimination case, if he thought the plaintiff was “slow to adapt to change” when he made the termination decision.
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The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.
According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation…. In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”
According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”
Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency.
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Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.
In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:
In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.
In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.
This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.
So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.
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