Workforce Planning: Aging and Employment
Module 2: Age Stereotyping, Age Discrimination
and the Legal Environment
Barbara McIntosh, Ph.D., SPHR • 2014
The development of this content was
made2014
possible through the support from a grant from the Alfred P. Sloan Foundation.
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Module 2: Overview
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Stereotypes in U.S. Society
Discrimination Statistics
Existing Legal Protections
Court Rulings
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Image Fit?
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Stereotypes
When people have beliefs and expectations about workers
based on their age and not on the particular knowledge, skills
and abilities of those workers, they hold workplace age
stereotypes (Hamilton and Sherman, 1994).
Source: Hamilton, D.L. & Sherman (1994) Stereotypes. in R.S. Wyer, T.K. Srull (Eds.), Handbook of social
cognition (2nd ed.). Vol. 2 Erlbaum, Hillsdale, NJ.pp. 1–68.
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General Stereotype
“To be old is to be sick.”
“Fifty percent of Americans believe health is a ‘very serious
problem’ for individuals over age 65”.
Reality?
Source: Palmore, E. (1999). Ageism: Negative and Positive (2nd ed.). New York, NY: Springer Publishing.
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Commonly Held Workplace Stereotypes
• Performance: lower ability, less motivated and less productive.
Reality?
• Resistant to change: harder to train, less adaptable, less
flexible.
Reality?
• Lower ability to learn.
Reality?
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Commonly Held Workplace Stereotypes
(continued)
• Shorter tenure
Reality?
• More costly
Reality?
Positive:
• More dependable; more stable, honest, trustworthy, loyal
and committed to the job; less likely to be absent or turnover
quickly.
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Age Discrimination in Employment
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Prevalence: In 2013, 21,396 age discrimination cases were filed with
the Equal Employment Opportunity Commission (EEOC), representing
23% of all discrimination cases.
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In 2012, 74% of survey respondents reported “age would be an
obstacle to finding work” in a AARP poll in Massachusetts.
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In 2002, 67% of surveyed workers ages 45 to 74 (n=1500) reported
that they believed there was age discrimination in the workplace
(AARP, 2003).
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In 2012, this number dropped to 64% (AARP, 2014).
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Age Discrimination Outcomes
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Negative Outcomes by Race/Ethnicity
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Legal Sources
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Bill of Rights/Constitution.
Civil Rights Act of 1964.
Age Discrimination in Employment Act (ADEA) of 1967.
Future:
> Americans with Disabilities Act (ADA) of 1990.
> Case law.
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Age Discrimination in Employment Act (ADEA)
The federal Age Discrimination in Employment Act of 1967 (ADEA)
protects individuals who are 40 years of age or older from
employment discrimination based on age.
The ADEA protects workers from age discrimination in every phase
of the employment relationship, including job advertisements,
interviewing, hiring, compensation, promotion, discipline, job
evaluations, demotion, training, job assignments and termination.
Source: NOLO. Your rights against discrimination. Retrieved from http://www.nolo.com/legalencyclopedia/rights-against-age-discrimination-29577.html
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ADEA (continued)
• The right to gainful employment has long been recognized.
• The ADEA passed in 1967 with a mandatory retirement age of
70.
• The law was amended in 1987 to eliminate mandatory
retirement.
Use of an individual’s age as a criterion for employment is
generally forbidden; only where age is a bona fide occupation
qualification (BFOQ) may it be used as a factor in employment
decisions.
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Unintentional or Intentional Discrimination
The U.S. Supreme Court has held that the ADEA prohibits practices
and policies that are seemingly neutral, but have a
disproportionately negative impact on older workers (disparate
impact), as well as those that explicitly treat older workers worse
than younger workers (disparate treatment). See Smith v. City of
Jackson, Mississippi, 544 U.S. 228 (2005).
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ADEA Protection
• Covers workers 40 years of age and older.
• Applies to organizations with 20 or more employees.
• Applies to organizations engaged in interstate
commerce.
• Does not cover bona fide executive or high-level
policymakers (attained the age of 65 and held the
position for two years) if entitled to a retirement
benefit of at least $44,000.
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Unlawful Employer Practices
It is unlawful for employers to:
• Fail or refuse to hire or discharge any individual or otherwise
discriminate against any individual with respect to his or her
compensation, terms, conditions or privileges of
employment because of the individual’s age.
• Limit, segregate or classify employees in any way that would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his or her status
as an employee because of the individual’s age.
• Reduce the way age is calculated for any employee to
comply with this ruling.
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Exceptions to Compliance
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Age as a bona fide occupational qualification.
Other reasonable factors.
Laws of a foreign workplace.
Seniority system.
Employee benefits system.
Discipline or discharge for good cause.
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Courts: Rulings Regarding Proving Discrimination
• Gross v. FBL Financial Group (2009)
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Gross sued for age discrimination following a 2003 demotion.
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Raised the bar. Instead of having to show that age was a substantial
motivating factor in a discriminatory employment decision, plaintiffs
from 2009 on have had to prove their age was the decisive factor.
Ruling now requires plaintiffs to provide direct evidence that they had
been discriminated against.
“The practical impact of Gross is that courts are now requiring plaintiffs to
put forward extremely compelling evidence of age bias” (Delaney, 2011).
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Court Interpretations
• Applicants must be judged on non-age-related issues:
Courtney v. Biosound, Inc., 42 F3rd 414 (7th Cir. 1994).
• Promotions must be based on merit:
Barber v. CSX Distribution Services, 68 F. 3d694 (3rd Cir.
1995).
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Court Interpretations (continued)
• It is illegal to terminate an employee due to age
considerations:
Benjamin v. United Merchants and Manufacturers, Inc., 873
F.2d 41(2nd Cir. 1989).
• It is illegal, with exceptions under ADEA, to force an
employee to retire:
Verbracken v. Westinghouse Electric Corp., 881 F.2d 1041
(11th Cir.1989).
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Labor Market Realities
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You are overqualified.
This job would not be a good fit for you.
The job has been filled.
We will keep you posted.
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EEOC Filings in 2013
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21,396 age-related (ADEA) complaints filed with the federal
EEOC in 2013.
Total charges filed: 93,727 (Title VII, ADA, ADEA, EPA, and GINA).
ADEA filings down from previous years:
> 2012: 22,857.
> 2011: 23,465.
> 2010: 23,264.
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Monetary benefits totaled $97.9 billion (not including monetary
benefits obtained through litigation).
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Tips for Managers
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Build and support a culture of respect.
Train all managers about nondiscriminatory behaviors.
Create multigenerational teams.
Recognize all deserving workers.
Offer training/development opportunities to all employees.
Focus only on job performance in performance reviews.
Keep job performance records.
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Educate All Recruiters
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Recruiters and interviewing managers should be sensitized to
conscious and unconscious stereotypes.
Focus should be on job description and required job performance.
Interviewing teams should include at least one mature worker.
Screening materials and tests should be printed in 12-pt or 14-pt
type.
Screening materials and tests should allow for variation in
completion time.
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Tips for the Older Applicant Facing
Discrimination
• Options: Walk away or educate (flight or fight).
• Prepare:
> Network: Contacts could be respected community
members, business associates and former bosses. Who do
you know?
> Do your homework: Be articulate about financial position,
growth profile and development opportunities. What do
you know?
• Present with a smile.
• Other??
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On Capitol Hill
Protecting Older Workers Against Discrimination Act
(POWADA)
• Sponsored by Republican Chuck Grassley and Democratic
Senators Tom Harkin and Patrick Leahy.
• Bill is designed to overturn a divided (5-4) U.S. Supreme
Court decision (Gross v. FBL Financial Services) that made
it much more difficult for older workers to prove claims of
illegal bias based on age.
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The Bottom Line
• The economy is pushing older workers to remain in the labor
force.
• American workers are living longer, healthier lives.
• Expectations about work in later life are changing.
• Stereotypes about older workers still exist.
• Legal protections exist, but age discrimination has become
more difficult to prove.
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