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The Ugly Truth About Age Discrimination

Put aside misconceptions about older workers. They’re often wrong, and can lead to a lawsuit if you act on them.

Posted by Dawn Lomer on February 7th, 2012

Nobody wants to see a 61-year old in a Speedo except, apparently, for the folks at the New York Office of Parks, Recreation and Historic Preservation, who wouldn’t allow a Long Beach lifeguard to wear his preferred, fuller-coverage suit in an annual qualification test. The 61-year-old is suing New York for age discrimination because he wasn’t allowed to take the test in his more modest swim jammers, arguing that the Speedo requirement was implemented to force aging lifeguards like him off the beach. “There should be a law prohibiting anyone over the age of 50 from wearing a Speedo,” he told a news reporter.

Equal Opportunity Crackdown

According to Equal Employment Opportunity Commission (EEOC) statistics, the number of age discrimination cases rose from 18,279 in 1997 to 26,080 in 2011 and settlements rose from $44.3 million to $95.2 million over the same period.

As more and more employers find themselves on the losing end of age discrimination lawsuits, some chalk it up to the “graying of the American workforce”. Not only are the baby boomers ageing, but many workers are forced to work longer after losing some of their retirement savings.

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But there’s more to it than simply more people in this age category in the workforce, although that is part of it, says Mark Toth, Chief Legal Officer, North America, Manpower Group. “The government has point-blank made it really clear that they’re going to enforce the equal employment opportunity statute more aggressively than they have in the past and they’ve got a lot more resources to do that,” he says. “That’s one piece of it. If you look at some of the statistics, something like 63 per cent of those that are in that class say they’ve faced age-based discrimination at some point in their career.”

Ageism Has Many Faces

Age discrimination applies to anyone over the age of 40 who is discriminated against on the basis of their age, unless it’s based on a bona-fide occupational qualification, says Toth. “It includes things like hostile work environment based on age and also retaliation or harassment for exercising your rights under the age discrimination in employment act.”

As part of the government’s commitment to enforcement, they are watching out for cases where companies may be trying to reduce the number of employees who have been with the company longer and make more money, says Toth. They also look out for statements in interviews and wording or photos in marketing collateral that can be seen as ageist. Telling a candidate that he or she is overqualified, for example, could be a sign of age discrimination. So can advertising and recruitment brochures that show only young people and words that connote youth.

Common Misconceptions

There are a lot of misconceptions about older workers, says Toth. One of them is that they don’t have the technology skills of the younger generation. It’s an assumption that he has concrete evidence to refute.

“One of the most tech-savvy people I know is my mom. She’s turning 76 in a few weeks, and if I look at my texts… there are more texts from her than anybody. She follows me; she participates in our webinars… She’s all over it,” he says. “So that has taught me a pretty valuable lesson.”

And that lesson illustrates what employment discrimination laws are all about. “It’s making sure you’re looking at a person rather than presumptions,” says Toth. “Just because somebody is 75 like my mom doesn’t mean she can’t run circles around my 20-year-old twins when it comes to technology. You want to make sure you’re not being naïve about those kinds of things.”

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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