As the #MeToo movement put the spotlight on workplace sexual harassment over the past nine months, it has also triggered an examination of a wide range of employment-related issues. In fact, employers are now on high alert for misconduct and discrimination in their organizations based on sex, race, religion, disability and a variety of other legally-protected groups. Although less publicized in the media, claims of age discrimination have been on the rise, especially as Baby Boomers put off retirement. Previously, organizations could expect senior employees to transition out of their roles in their 60s, allowing for a new wave of talent to enter the pipeline. However, as fewer and fewer Americans are financially prepared to retire, Boomers are clinging to their jobs for as long as they can. Unfortunately, this has prompted a troubling trend of older employees being pushed out and replaced with younger, less expensive workers.
Recently, several Fortune 500 corporations, including IBM, Intel and Starbucks, have been under investigation by the Equal Employment Opportunity Commission (EEOC) for age discrimination charges. The EEOC is responsible for enforcing laws related to various forms of workplace discrimination, including the Age Discrimination in Employment Act (ADEA), which forbids employers from discriminating against people who are age 40 or older in regards to hiring, promotions, wages, and termination of employment and layoffs.
Age discrimination takes on many forms and can range from outright to insidious, such as refusing to hire someone because they are “too old” to gradually shifting responsibilities away from an employee until they are forced out. Phrases like, “you are not a good fit,” “you don’t get along well with others,” “you don’t work well in our culture” or “you might be happier elsewhere” are common potential indicators of discrimination. These discriminatory patterns can also be systemic rather than individual. For example, in the case of Intel, the company has been accused of disproportionally letting go of older employees in a series of layoffs that removed over 10,000 jobs since 2016. In that instance, the claims suggest a company-wide issue, rather than an isolated instance involving specific employees, which is more difficult to identify and rectify.
The 40 or older age cutoff is surprising to many as it is applies to staff who are much younger than one might expect, yet it has significant implications for employers and employees alike. Since 42 years old is the median age of employed individuals in the US, this means that over half of American workers could be subject to age discrimination. As many employees are simply unaware that they fall into a protected category due to their age, discriminatory behavior often goes unrecognized and unreported. Further, age discrimination can be an instance where individuals who normally don’t find themselves in a marginalized category (e.g., Caucasian males) may not realize that they are the victims of bias and are less equipped to combat it.
Despite the sometimes elusive nature of age discrimination, the laws are adapting to better address unfair treatment of this group. When it comes to our region, the Commonwealth of Pennsylvania and the City of Philadelphia have additional protections for older employees. The Pennsylvania Human Relations Act (PHRA) and the Philadelphia Fairness Practices Ordinance both prohibit employment-based discrimination on the basis of age and define “age” as any person 40 years old or older. While these are both in line with the ADEA, New Jersey pushes the needle even further, similar to the state’s progressive approach to equal pay legislation.
In New Jersey, age discrimination applies to behavior that targets people who are older or younger than others and are treated differently in an employment context based on age. In the landmark New Jersey case, Braden v. Lockheed Martin, the plaintiff, a 66 year old engineer, alleged that Lockheed Martin discriminated against him based on his age when he was the only member of his team to be let go in a round of layoffs despite a history of excellent performance. Braden was awarded just over $50 million in the verdict – the majority of which were punitive damages – when the jury agreed that Braden would not have been terminated “but for” his age. Notably, a judge rejected the jury’s punitive damages award as excessive, but the jury’s reaction does not bode well for employers facing similar charges in the future.
Given the shifting state of affairs in this area of employment law, employers and employees are prudent to take the following steps to prevent and address discriminatory behavior based on age. These actions are applicable to all forms of discrimination, many of which are covered in more detail in our previous piece on combatting workplace sexual harassment.
Keep a Work Journal
In order to best advocate for yourself should any misconduct arise, it is critical to keep track of your accomplishments and contributions as well as any instances of impropriety that occur at your job. A written record should be kept outside of the office, ideally in a bound notebook that is updated on an ongoing basis.
Save Emails, Texts and Voice Messages
Retain copies of any form of communication that praises you and your work as, unfortunately, these testimonials are more valuable than what you say about yourself. The same goes for discriminatory behavior – save concrete examples of any inappropriate conduct you witness or experience directly as sources of proof.
Report the Behavior
Review your employer’s discrimination policy to best understand what constitutes inappropriate conduct within the policy and what reporting guidelines are in place. If you elect to file a complaint, do so in writing through the company’s established procedures. Keep a printed copy of the complaint as well as electronic copy for your records.
Develop a Written Policy
Every employer, regardless of size, should maintain a clear and current written policy stating that the organization will not tolerate any form of discrimination, harassment, or retaliation for reporting adverse conduct. The policy should specify how to lodge a complaint and what to do if the point person for receiving complaints is the one allegedly committing the offending actions.
Provide Employee Training
Conduct in-person training that is tailored by position. It is particularly important for senior leadership and HR staff to understand anti-discrimination laws and how to comply with them. For example, employees must be careful to avoid age-related comments around team members being “old fashioned”, “out-of-touch”, or “technologically challenged”. Also, when hiring or reducing the work force, you need to ensure that it does not disproportionately impact those over 40.
Conduct a Timely Investigation
If an employee raises age-related bias, they should have the respect of a thoughtful and timely investigation. The longer the process lingers, the more those involved face uncertainty and ongoing discomfort. Employers should be mindful that delays are painful, and should move the investigation along promptly. Further, bringing in an external investigator who is skilled at handling these sensitive matters helps ensure that the investigation is impartial, and gives all involved parties a fair opportunity to be heard.
Work Towards a Resolution
Braden v. Lockheed Martin should be a cautionary tale for all employers as to what can transpire when reports of age discrimination are dismissed. Instead, following an investigation, inform the parties of the results and the steps taken to remedy any impropriety. In the case of an age discrimination settlement, negotiate a resolution that is reasonable and fair. Be certain to include these provisions: 21 days for the employee to review the settlement agreement and release and 7 days to revoke acceptance due to a change of heart after signing.
As Baby Boomers continue to work well into their 60s and beyond, age-related discrimination claims won’t be going away. In fact, if broader protections similar to those implemented in New Jersey come into effect, considerations about age-related bias and treatment will be of increasing importance in corporate environments. Until then, it’s best to take into account the above recommendations and avoid comments or actions that suggest any age-related bias in the workplace.