Compliance

EEOC Hearing Witnesses Call for Help With Older Worker Employment

As people are living longer and wanting to work longer, witnesses at an EEOC meeting about the ADEA made suggestions about how regulators and employers can reduce age discrimination and help people work longer.

By Rebecca Moore editors@plansponsor.com | June 15, 2017
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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.”

NEXT: Encouraging continued work for older employees

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