Age discrimination in the workplace

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Abstract

This paper examines age discrimination in the workplace. The aim of the analysis was to establish what constitutes age discrimination, the age discrimination laws, class of employees’ protection by the age discrimination laws, consequences of age discrimination and exemptions of age discrimination. The nature of the workplace is becoming highly diversified as young and old people continue to flood the workplace. This diversity increases risk of age discrimination because some employers prefer young employers because of competence and creativity. Age Discrimination in Employment Act of 1967 (ADEA) protects employees aged 40 years or more against discrimination by employers. Employers are required to treat all employees equally and fairly and any preferential treatment should be based on other factors such as performance and merit and not age. However, employers cannot be held responsible for favoring older employees at the expense of younger employees. Furthermore, there are some conditions which allow employees to favor young employees over older employees. Therefore, employers should understand the legal requirements on how they should treat employees to avoid liability for age discrimination.

Introduction

The modern organizations have become highly diversified due to increasing competition and legal forces requiring protecting the rights of minority groups in the workplace. The increasing diversity of workforce increases the risk of discrimination of some groups because employers have their preferences though they have to obey the law and satisfy the expectations of the society. Older people are among the groups at risk of discrimination at the workplace. Age discrimination at the workplace can be defined as showing unfair or unequal treatment towards the employees of older age against other employees in the same organization on the basis of their age. Employees become vulnerable to discrimination as they grow old and measures should be taken to protect this class of workers. Becoming old can cause jitters and cause the employees many worries. Even the unemployed are a much-worried lot because as they grow old, it becomes problematic for them to secure employment. Discrimination is becoming a very serious issue in the workplace around the word even the society strives towards equality and fairness for all including the minority groups. This paper examines the age discrimination of employees at the workplace. The analysis aims to examine the nature of workplace and laws on age discrimination, what constitutes age discrimination and nature of protection provided by the law, who should be protected, exemptions, and impact of age discrimination laws on the organizations and how to avoid age discrimination in the workplace.

Overview of age discrimination at workplace

The life expectancy of Americans is improving and the number of older people above 65 years is increasing. Similarly, the number of older people who are at work is growing as more older people join the labor force after retirement. According to the bureau of labor statistics, about 40% of the people above the age of 40 years were in the labor force in 2014. The number is expected to continue rising as the people aged 65 and above join the labor force after retirement. “According to the Bureau of Labor Statistics, employment of workers aged 65 or older has grown by 117% in 20 years, while employment of individuals 75 years or older has likewise increased by 117%” (CDC, 2016). The statistics further project that by 2024 about one-quarter of the workforce will be aged above 65 years including about 13 million employees aged 75 years and above (Toossi & Torpey, 2017). More people are interested in working to increase their earnings, but the increasing workforce diversity increases the risk of age discrimination among the older workers.

Age discrimination can be direct or indirect. Direct age discrimination occurs when the employers’ shows favoritism to younger employees compared with older employees on the basis of age (Giacalone & Promislo, 2014). Indirect discrimination occurs when employers impose work conditions that seem to favor the younger people when such conditions have no relationship with the job performance. Other forms of discriminations include harassment and victimization of older workers. Any form of unfairness to older workers is illegal, and the law protects this class of employees.

Age discrimination laws

The enactment of Civil Rights Act of 1964 (also referred as Title VII) by the US government was the first step towards the war against various forms of discrimination such as color, sex, race, religion, etc. (Triana, 2017). However, the act did not provide for protection against age discrimination. In 1967, the government introduced Age Discrimination in Employment Act (ADEA) to prohibit employees against discrimination on the basis of their age. The Act protects employees between the age of 40 and 65 against discrimination by their employers on the basis of their age. Later ADEA was amended to protect all employees above the age of 40 against age-related discrimination (Sargeant, 2016b). The Act applies to all employers with 20 or more employees who work for at least 20 weeks in a year, working for the local or federal government, employment agencies and labor organizations. However, according to the case in Morelli V. Cedel, ADEA protects U.S. citizens working in foreign countries regardless of the number of employees under the employer. It is illegal for the employer to treat an employee unfairly on the basis of whether the victim is a current employee or job applicant.

The amendment of ADEA led to the introduction of Older Workers Benefit Protection Act of 1990 (OWBPA) which protect employees against age discrimination leading to a denial of certain employees of employment benefits on the basis of age (Triana, 2017). The only reason the employers can be allowed to reduce the employment benefits of the older employees is when the reduced cost of providing such benefits equals the cost of providing the same benefits to the younger employees. All employees are entitled to the same benefits irrespective of their age and employers will be held liable for providing lesser benefits to older employees on the basis of their age (Sargeant, 2016a). Although this category of laws apply to employees above the age of 40 years, these workers are also protected by other laws which apply to other workers including race, color, gender, disability, etc.

Issues covered under age discrimination laws

The age discrimination law protects employees from employers against unfair firing, layoff, benefits, and promotion, training and job assignments among others. The employer should treat all employees equally by giving them equal opportunity to exploit their potential and enjoy a cool working environment without feeling intimidated (Sargeant, 2016b). Furthermore, it is unfair for the employee to hit back on older employees for going against the age discriminatory employment practices or for being involved in issues of age discrimination.

ADEA does not provide legal protection to every employee. Employees in executive or other senior positions may be required to retire at the age of 65 years if they qualify to receive pension benefits exceeding $44,000 and above. Also, ADEA exempts employers under “bona fide occupational qualification (BFOQ)” (Sargeant, 2016a). This means in case an employer wants an employee who can perform certain activities befitting young people such as becoming as modelling requiring a young person or a teen the employer cannot be legally liable for age discrimination. Other positions such as the military or police force exempts employers from taking responsibility for hiring young workers. Employers should consult experts to understand areas requiring exemptions.

Although the age discrimination laws apply to a certain class of workers above the age of 40 years, an employee can raise a complaint against the employer for age discrimination if the employer showed fair treatment based on age to another employee in the same class (Sargeant, 2016b). However, if both employees are in the workgroup protected by the discrimination laws and the employer decides to treat the older employee fairly at the expense of the younger employee, the younger employee cannot raise a successful claim against the employer on age discrimination. For instance in the case of General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court stated that ADEA does not protect younger employees against age discrimination if the employer shows favouritism to an older employee on the basis of age. Therefore, the employer has the responsibility for promoting a fair workplace environment which does not promote unfairness to older employees in favor of the younger employees.

Impact of age discrimination legislation at workplace

Any employee who feels discriminated against by employers on the basis of their age can present their complaints to the United States Equal Employment Opportunity Commission (EEOC). The EEOC is the body responsible for enforcing ADEA. The complainants have a period of 180 days to file their complaints against the employer for alleged age discrimination (Giacalone & Promislo, 2014). However, for the victim to make a successful claim of age discrimination against the employer, they must demonstrate that they were treated unfairly, and at the time of alleged discrimination the claimants had an acceptable performance standards. Also, the employee should prove that they were within the protected class and that employees outside the protected group received favorable treatment while in the same capacity as the person being discriminated against.

Age discrimination laws are impacting the productivity of organizations in many ways. There are some employers who prefer older employees because they are resilient, hardworking and experienced (Sargeant, 2016a). However, other companies focus on younger employees because they are highly innovative, easy to adjust to the changing work environment, competitive and productive. The age discrimination laws influence the choice of the workforce the employers can have in their organizations especially for those with a preference for younger people (Wiener, Willborn, 2010). The employer must strive to retain older employees to avoid conflict with law on discrimination of older workers.

Employers have a “positive duty” to prevent age discrimination from occurring at their workplace instead of waiting for it to occur and then respond to the complaints raised by the victims (Wiener, Willborn, 2010). Employers should take a active role in preventing workplace discrimination including examining the working environment to establish whether the employment conditions and policies are discriminatory and take corrective measures to stop discrimination.

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In conclusion, the law protects employees against discrimination based on their age. The law protects employees on various aspects and at various phases of employment including recruitment, terms and conditions of work, and dismissal or termination of employment contract. It is against the law for any employer to treat any of the employees because of their age. The increasing workplace diversity puts employers at greater risk of discriminating some workers on the basis of their age. Therefore, employers should avoid ads for employment which portray discrimination of the certain group because of age or impose conditions which prohibit potential employees of older age from applying for the jobs. Employers should be aware of the age discrimination legislation and exemptions to avoid legal liability. Also, they should review the workplace policies and conditions to ensure they do not implement practices that amount to age discrimination.

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  1. CDC, (2016), Productive aging and work.
  2. Toossi, M. & Torpey, E. (2017). Older workers: Labor force trends and career options, Career Outlook, U.S. Bureau of Labor Statistics.
  3. Mahoney v. RFE/RL, Inc. (DC Cir. 1994) 47 F3d 447.
  4. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) 124 S.Ct. 1236.
  5. Giacalone R.A. & Promislo (Eds) (2014). Handbook of Unethical Work Behavior: Implications for Individual Well-Being. New York: Routledge.
  6. Morelli V. Cedel (2nd Cir. 1998) 141 F3D 39, 45.
  7. Sargeant, M. (2016a). Age Discrimination in Employment. New York: CRC Press.
  8. Sargeant, M. (2016b). Age Discrimination: Ageism in Employment and Service Provision. New York: CRC Press.
  9. Triana M. (2017). Managing Diversity in Organizations: A Global Perspective. New York: Taylor & Francis.
  10. Wiener, R.L., Willborn, S.L. (2010). Disability and Aging Discrimination: Perspectives in Law and Psychology. New York: Springer Science & Business Media.
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