Ageism in the Workplace: Prevent Liability by Focusing on Abilities, Not Age

In today’s modern workforce, it’s not uncommon to find employees from a number of generations in a single company. In this episode of The Workplace, CalChamber Executive Vice President and General Counsel Erika Frank talks with employment law expert Jennifer Shaw about the pitfalls of age-based stereotyping, succession planning and mandatory retirement.

‘Stereotypes on Both Sides’

Two laws protect workers who are 40 years of age or older from discrimination — the California Fair Employment and Housing Act, and the federal Age Discrimination in Employment Act (ADEA). When the ADEA was passed in 1967, the common retirement age was 60 and many workers had a defined retirement benefit plan that required at least 20 years of service, Shaw explains. Congress sought to protect workers with the ADEA so that a worker could still meet the terms of the benefit plan in time for retirement.

Times have changed, however.

“These days, of course, it’s not unusual at all to have a 70-year-old in the workforce doing a great job,” Shaw tells Frank. “It’s also not unusual to find a 21-year-old being discriminated against because somebody has…the perception that if you’re 21 you couldn’t possibly be mature, or you couldn’t possibly be responsible. So, we’ve got stereotypes on both sides.”

Frank agrees, pointing out that it’s important to consider a worker’s abilities over that person’s age.

“On the one hand you can ask, ‘When are you too old?’ But the other question could be ‘Are they too young?’” Frank says. “As opposed to just looking at the worker in a holistic way and saying, ‘Here’s what we need for you to perform in the job.’”

ABCs of Managing

One of the challenges of having workers from several generations in a workplace, Frank says, is that each generation is marked by its own experiences, values and work ethic.

Shaw recommends that employers focus solely on a worker’s skills, qualifications and abilities.

“Are they doing what you need to them to do? If they aren’t, then we have to take steps to correct that,” she tells Frank.

Employers should not try to be kind and make exceptions for particular workers, Shaw explains, as the exceptions can turn into liabilities. To illustrate her point, she uses the hypothetical example of Mary Beth.

“For example, ‘Well we have Mary Beth and she just turned 65. We know she’s slowing down. Let’s reduce her productivity standard,’” Shaw says. “[This] feels like a really nice thing to be doing…but of course we just created a slew of issues.”

What if Mary Beth’s bonuses are based on her productivity and it is now more difficult for her to get a bonus? And what happens, Shaw continues, if a 42-year-old coworker is being held to Mary Beth’s previous productivity expectation—isn’t the coworker being held to a different standard?

“Even sometimes when we try to do something nice, we actually create potential liability, so we sort of go back to those ABCs of managing and hiring and corrective action…” Shaw explains. “Don’t be swayed by how old or how young someone is, or your own bias…about what…an ‘older worker’ can or should be doing…[or] what a ‘younger worker’ can or should be doing.”

Other Considerations

If an older worker has a medical condition, the employer should treat that older employee like any other employee. Ask for medical documentation, determine whether the employee is eligible under the federal Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA), or needs accommodation, Shaw advises.

“We don’t put on the kid gloves, because that’s when you really create a legal issue,” she says. “You start doing something…nice for someone, pretty soon you’ve created an entitlement to an accommodation.”

Employers also should make training available for any worker who needs it. Stereotypes might label an older worker as being slower with technology, but even younger workers can struggle with it, Shaw points out.

“You should really be thinking for every position: what training should we be offering, how are we going to gauge performance, how are we going to make sure that we are able to tell if someone is doing the job, and then be consistent in that process,” she says.

Succession Planning

Age should not be a factor when succession planning. Shaw recommends having a succession plan whether an employee is 21 or 81.

Again, the work culture has changed and “people just don’t stay in jobs the way they used to,” Shaw says. Succession plans were put into place to prepare for an employee who was close to retiring, but workers now sometimes leave to experience a change and not just for retirement, she adds.

Mandatory Retirement

Mandatory retirement is legal only in limited government or government-managed agencies where there is a health and safety issue tied to age — such as aviation (pilots) or certain correctional agencies, Shaw explains.

Other than in these select industries, mandatory retirement programs are illegal, she emphasizes.

Sometimes, firms or agencies will have retirement agreements, but the agreements are not technically mandatory, as they are negotiated agreements among the employer and employees in the firm, Shaw says.

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