EEOC Hearing Witnesses Call for Help With Older Worker Employment

This year marks the 50th anniversary of the Age Discrimination in Employment Act (ADEA), and the Equal Opportunity Employee Commission (EEOC) held a hearing, “The ADEA @ 50 – More Relevant Than Ever,” to discuss what works and what doesn’t.

The reason the ADEA is more relevant than ever is people are living longer and wanting to work longer. As witnesses pointed out, some employees want to keep working either for engagement reasons or financial reasons, and some want to retire from their current jobs to pursue ‘encore’ careers. All witnesses noted that age discrimination in employment is still ongoing.

Laurie McCann, senior attorney with the AARP Foundation, noted that requirements for jobs can be subtle in their discriminatory nature. For example, specifying a minimum number of years for a position is legitimate, but specifying a maximum number of years of experience (i.e., no more than 10 years of experience) has a clear and predictable disparate impact on older applicants. Similarly, restricting all recruitment efforts for entry-level positions to college campuses and requiring a college-affiliated email address in order to apply will have the foreseeable effect of excluding the vast majority of older applicants. Other employers have required job candidates to be “digital natives.” A digital native is an individual who grew up using technology from an early age, versus a “digital immigrant,” which refers to someone who adopted technology later in life. This distinction is clearly age-based and can be used to unreasonably and thus unlawfully screen out older applicants.

She added that some online job-search sites and applications also can screen out older applicants. For example, some require applicants to include dates of birth or graduation dates in fields that cannot be bypassed. This practice deter older individuals from applying, as many will wonder why they should bother trying when their age will be obvious to the employer.

McCann suggested ADEA policy improvements, such as:

• make age-related inquiries and specifications presumptively unlawful;
• reinforce that practices like maximum experience requirements and requirements for applicants to be affiliated with a university are age-related;
• bar requests for date of birth, graduation dates, or similar information unless age is bona fide occupational qualification; and
• prohibit practices of online job sites and others that require entry of age to complete an application, use drop-down menus that contain age-based cut-off dates, or utilize selection criteria or algorithms that have the effect of screening out older applicants.

She said, “These regulations should be issued as substantive ‘legislative’ regulations, not as interpretative regulations.”

Jacquelyn B. James, PhD, Boston College, also had suggestions for options for continued work or retirement of employees. “Providing options for continued work in later life can decrease unexpected turnover costs and loss of institutional knowledge by providing flexible ways for employees to stay in the workforce, maintain a sense of purpose, and build their financial security,” she said.

She suggested employers:

• Provide employees with information and resources about continued work, e.g., flexible work options, phased retirement, reduced responsibilities, part-time options; and creating a program to reengage retired employees who want some level of continued involvement with the organization;
• Provide career counseling or coaching to workers of all ages, both financial and nonfinancial retirement coaching to promote an orderly and successful transition for employees and the business;
• Make knowledge management a priority in career counseling; and
• Use individualized development plans to help workers who want to retire make a smooth transition into that next stage of life.

“Today’s older worker may want to continue working past conventional retirement ages for both personal and financial reasons. Yet, twin myths that older workers are pining for retirement and that younger workers are more likely to stay with the organization persist. Workers of all ages, however, may value certain conditions of employment that makes continued work more realistic. Thus, employers can develop strategies for retaining employees of all ages,” James said.

She suggested employers create desirable working conditions by:

• Giving workers of all ages flexible work options or more control over where, when and how much they work.;
• Determining the extent to which flexible work options solve problems rather than create problems and determine which flexible work options are best for a given business;
• Conducting regular assessments of the strengths and weakness of organizational policies-which ones are employees using? Do employees feel a stigma attached to their use? Are they implemented consistently and fairly? These are important questions in deciding the extent to which flexible work options support business outcomes; and
• Provide training and development opportunities for workers of all ages.

Sara J. Czaja Leonard M. Miller Professor of Psychiatry and Behavioral Sciences Director, Center on Aging Director, Center for Research and Education on Aging and Technology Enhancement (CREATE) University of Miami Miller School of Medicine, noted that, “Maximizing the potential of older workers and their contribution to the workforce will require strategies to accommodate the skills, abilities and preferences. One important issue is of course recognizing the value of older workers and striving to match their skills and abilities with the demands of jobs and work environments. This requires both a workforce and workplace assessment to understand needs in worker skills and potential changes in jobs or the work environment to accommodate older people.”

She suggested:

Reducing the physical demands of jobs and making sure that workplace and environments adhere to existing ergonomic standards and available guidelines for older people; designing more flexible work schedules such as alternative work hours, shorter work weeks, or providing the ability to work from home for some portion of time; accommodating competing family demands; and ensuring that technology systems and applications are properly designed to ensure effective use by older workers whose perceptual, cognitive and psychomotor capabilities are likely to be undergoing normative age-related changes. If these changes are not considered older workers may not adopt technology that has the potential to improve efficiency and productivity, or if it is adopted, it may not be used to the fullest extent and have the desired benefit due to usability issues. Employers can also ensure the availability of training and technical support. In today's work environment, with the continual diffusion of new technologies training and retraining of older workers is critical to organizational effectiveness. There are also guidelines available (authored in fact by members of the CREATE team) regarding design of training programs for older adults. This may involve partnering with community agencies to provide venues for job related training. It should also involve partnerships between industry and the government to support worker-training programs. As noted, the CREATE team has handbooks available on these topics. 

“Overall, addressing usability barriers for technology adoption, including attitudinal, social/institutional, and physical, is central to encouraging and enabling older workers to prolong productive and satisfying labor force participation. In addition, training support must be available and designed to accommodate older adults. If technology is designed properly and accompanied by appropriate training it can improve the health, safety, productivity, and longevity of an aging workforce,” Czaja concluded.

Patrick Button, Assistant Professor, Department of Economics at Tulane University, pointed out that age discrimination is a bigger problem for women than men.

He points to research that found there is a huge gender component to age discrimination with older women experiencing age discrimination at younger ages (at least age 50) and much more age discrimination than older men. “Thus, ‘sex-plus-age’ intersectional discrimination is a verified problem,” he said.

Button suggested that “given the aging population that increasingly wants to—and needs to—work, and is increasingly made up of older women, policies such as legal reform that confront "sex-plus-age" discrimination are needed.

Full written testimony given at the EEOC meeting, may be found at https://www.eeoc.gov/eeoc/meetings/6-14-17/index.cfm.