Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Beatriz Berumen | The Daily Recorder | Mar 29, 2016

The U.S. Census Bureau projects that by the year 2020, approximately 20% of the U.S. population will be age 65 or older. Federal and state governments continue to debate the effect of the aging population on public pension and health care systems. At the same time, employees are increasingly extending their working lives, many by choice and others by necessity, resulting in an aging workforce.

Employers can no longer assume that employees of a certain age will retire. Healthier and more active lifestyles, new or changing career aspirations, and would-be retirees’ concerns over the availability of retirement assets and the lack of public resources are driving older workers to continue to work beyond the “traditional” retirement age. Employers should consider modifying their workplace policies and procedures to adapt to this change in workforce demographics.

Legal Requirements

Under the federal Age Discrimination in Employment Act and California’s Fair Employment and Housing Act, employers may not discriminate against anyone 40 years of age or older in hiring, promotions, wages, benefits, terminations or other conditions of employment. These laws also prohibit employers from implementing “neutral” practices and policies that disadvantage “older” employees.

For example, refusing to hire applicants who are “overqualified” may be seen as a euphemism for age bias. Similarly, using salary as a factor in determining which employees will be subject to a reduction-in-force may result in successful claims for age discrimination. Employers may only avoid liability for these practices by demonstrating that their personnel practices and policies are based on “reasonable factors other than age.”

That said, employers may make decisions based on age “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” However, this exception is narrowly interpreted, and it generally applies where public safety may be at risk due to an individual’s age, such as airline pilots. (The BFOQ exception also applies where the law requires employees to be a certain age to work in a particular job, such as a bartender.)

Age-Related Stereotypes

As the workforce matures, age discrimination claims based on “failure to promote” and “failure to train” are likely to increase. Employers tend to offer on-the-job training and career counseling to early and mid-career employees. Some employers presume that older workers are uninterested or reluctant to learn new skills or change jobs. Other employers do not want to “waste” training and other resources on employees who “may” retire soon. These decisions, of course, just like only allowing “younger” workers to participate in “succession planning” programs, can lead to liability for employers.

Of course, employers should hold all employees accountable for performing their job functions. As technology changes, employees must acquire new skills and be able to adapt to new expectations. Employees who fail to grow with their positions may find themselves “behind the times” and unable to meet employer demands.

Employers may also engage in inadvertent “age bias.” Supervisors may leave older workers off the email distribution list for the monthly “happy hours” at local pub, for example, assuming they wouldn’t want to attend. Or comment that an older employee “looks good for her age,” or need not be included in strategic planning discussions because he “won’t be around” for much longer.

Tips for Employers

Employers should take affirmative steps to ensure they treat employees of all ages fairly and consistently. They should review their policies and practices to ensure that stereotypes about mature workers have not unintentionally created barriers in recruitment, hiring, promotion and retention. Are applicants with “long” resumes automatically excluded from consideration? Do supervisors tend to assume that older workers are unwilling to travel and only offer out-of-town assignments to younger employees? Do managers consider how long an employee “may” stay with the company to decide which employees to send to conferences? To avoid these situations, leaders must be trained to recognize age bias, and learn how to overcome age-based stereotypes.

Employers also should recognize that the cost of age bias at work is not limited to legal liability for age discrimination or harassment. Failing to integrate older workers into the workplace culture deprives everyone of the knowledge and experience these employees bring to the table.