The Age Discrimination Employment Act is in place to protect people over the age of 40 in the workplace. The act was formed to prohibit discrimination of employment based on age. This includes hiring and firing. Salary, promotions, training, benefits, and any other terms or conditions of employment are also included.
Although it is not exactly legal for an employer to discriminate based on age, it happens much more frequently than most of the business world would like to admit. Discrimination in the workplace based on age is common and some organizations even make it a regular habit. The reason for this is proof of employment discrimination solely based on age in the workplace can be challenging to provide.
Employers know the difficulty an employee can have in providing evidence of age discrimination. Organizations also realize they have numerous tools at their disposal to show action was not based completely on age even when it might truly be the case. Performance reviews, technology, and a company’s Human Resource Department are not on the side of an older employee that might be the target of age discrimination.
Even though it can be difficult for an employee to establish a claim of discrimination based on age, there are some things older workers can do to limit the possibility of it occurring.
Employment Age Discrimination Is Common
Because age discrimination in the workplace is so hard to often show, the true regularity of it happening is difficult to say. Yet, surveys regularly show the practice is likely common. One study by AARP showed that 2 out of 3 workers ages 45 and older have seen or experienced discrimination on the job based on age. The same study also showed that getting hired at an older age can take much longer with many employers preferring younger job candidates. The reality is that finding comparable work at an older age after a layoff or firing can turn out to be quite a challenge.
Probably one of the largest factors when it comes to age discrimination in the workplace should not surprisingly be financially motivated. With most companies looking to maximize profits by keeping overhead costs low, younger workers many times come at a cheaper price. Therefore, layoffs and hiring are often motivated by money. Older workers commonly come at a higher cost.
Younger workers are also regularly viewed by employers as having higher energy, being healthier, and having fewer commitments that can keep them focused at work. Older employees that might have a spouse and family also do not seem to have the same value to some employers because these things will take personal time away from a job.
Age Discrimination is Difficult to Prove
The significant amount of age discrimination in the workplace that does occur happens primarily due to the difficulty of demonstrating a case. Research has shown that cases of employment age discrimination rarely go to trial and when they do an employer is twice as likely to win. This is due to the resources an employer can use to build a case for why a decision was not based entirely on age alone.
Human Resource Departments
An organization’s HR department is many times thought of as an employment or employee advocate. This is only further from the truth when it comes to age discrimination. The Human Resource department in a company is not in place to support the rights of potential or current employees. Their primary role is to protect the company they represent. There are several misconceptions with HR departments and employee advocacy is probably one of the most common.
Even if someone is specifically and quietly the target of true age discrimination at work, an HR department will work to ensure the companies legal liability is covered. Therefore, employees, so many times do not have a chance when it comes to claiming a case of age discrimination at work. Performance appraisal reviews can easily be manipulated in an employer’s favor to show poor work on the job and every mistake small or large can be tucked away and documented for future use.
If an employer lays out a plan to get rid of an older employer based on age alone, they might not be able to immediately do it. But a case can be built overtime to make it happen. It might not be exactly legal if a layoff or firing occurs based on age alone. However, an HR department will ensure they have enough documentation to ensure reasonable doubt. The same could occur for promotions or pay raises based on age.
Hiring Based on Age
Age discrimination in the workplace doesn’t just occur for existing employees. It also happens to older workers that apply for jobs. Sitting down for a face to face interview a potential employer can see how old a person might be. They can also observe if that person might be married with the help of a wedding ring or have children by asking questions. These can all potentially point to an older job candidate. If a hiring manager is being more selective of who they hire based on age, an in-person interview certainly allows for age discrimination.
Technology and hiring norms are also helping with the ease at which some employers can discriminate against older workers. A chronological resume with listed dates of employment or education can easily provide clues on a potential job candidate’s age. Although it might be illegal to discriminate based on age, a resume can easily help facilitate the practice. But there can be some ways to minimize the possibility of resume age discrimination. Here is a previous article on 10 Things to Avoid Resume Age Discrimination.
Filling out job applications on the internet either through job boards or directly at a company’s website can also help with age discrimination. It is not uncommon for some businesses to require certain fields in their employment applications online that can help point to an applicant’s age. Requiring dates for employment and education just like a standard resume is one way to accomplish this.
Applicant Tracking Systems (ATS) are also being frequently utilized in online job application systems to filter for keywords. It is illegal to filter out older job applicants by using an ATS system, but don’t think it doesn’t occur. These programs are only as good as the people that define the parameters the programs use. To learn more about Applicant Tracking Systems here is a good article on them Applicant Tracking Systems (ATS) are Bad for Job Searching.
What can be done to limit employment age discrimination?
The truth is workplace age discrimination will never be able to be eliminated and it will likely still happen on a common basis for the foreseeable future. However, there are a few things that can be done to try and limit the practice.
Keep Good Records
Keep detailed records of performance reviews and other material showing that you are doing a good job at work. If they are only available electronically, make sure to get a physical copy and keep it someplace safe. If you are an older worker and ever let go for what you believe is discrimination based on your age while your employer claims it is performance-related, you will have records to back up your good work.
Format a Resume to Not Give Away Your Age
If you are applying for a job and don’t want to be discriminated against based on age initially, it is important to not give away your age on a resume. Dates of employment, education, and just an extremely long work history can date a potential job candidate. Outdated areas of study in college or one that has had a name change at some point can also help a hiring manager figure out a job applicant’s age.
For older workers in the job market, it is extremely important to not age yourself on a resume. A good resume not giving away your age has better potential to get through to an in-person or phone interview. This will allow an older job candidate to convey what they have to offer over a younger applicant.
What if you believe you are the target of employment age discrimination and what should you do?
The truth, as previously mentioned, is most companies will always have the advantage when it comes to proving age discrimination in the workplace. There are federal laws in place to prevent the practice and state regulations. Even with rules in place, it can be a gamble to bring a complaint against an employer. The result has the potential to be a judgment in your favor, job loss, or being blacklisted in an industry for the remainder of your career.
You Could Lose Your Job
The reason for an employment age discrimination complaint being such a big gamble is the burden of proof I have repeatedly referred to in this article. One of the first steps to this proof is often getting a formal complaint on record. This includes getting the accusation in writing to a supervisor or the Human Resource Department. Both of which will likely look for ways to build a defense for your employer and the same company that gives them a paycheck.
Although complaints to a manager or HR department for any type of illegal discrimination in the workplace might be valid, this will set off a chain reaction that could either work in your favor or more likely against you. The fact is most companies do not like employees that cause trouble. This even means trouble that might be illegal on their part. Employers want workers that do their job and do not cause issues.
The problem with making a formal complaint in the workplace based on age discrimination is not only the burden of proof, but it also will make the person that made the complaint a target. The result has the potential for the employer to start building a case against the employee that made the complaint to get rid of that person with enough evidence to rightfully fire that person.
When it comes to making formal complaints to a superior or Human Resource Department at work it is always a gamble. A complaint today will likely make a person the target of getting fired tomorrow. Do not think for a minute that any conversations with a manager or HR department are confidential. They never are.
You Might Win a Financial Judgement and be Blacklisted
Being wrongfully terminated or laid off from a job due to age discrimination can put a person in financial turmoil. Winning a suit in court for a financial judgment can certainly help. However, companies in the same industry do talk to each other and politics always play a role. You might win a year’s salary in court due to an age discrimination case, but you might never be employed in your career field again. This is a big gamble.
Businesses do not like trouble makers as I mentioned. Someone that brings a financial suit against a former employer resulting in monetary loss for that employer is almost always seen as a trouble maker. Negative press could also be generated as a result of a case and this can be damaging to a company. A potential employer that knows a person’s history of filing and winning an age discrimination case might stay clear of hiring that individual due to this.
Although workplace age discrimination is technically an illegal practice, it happens frequently. It doesn’t only happen in the workplace for existing employees at a business, but it also occurs in the hiring process.
There are federal and state laws in place that should prevent employment age discrimination, but these really do not do much most of the time. The reason for this is the burden of proof to show actual discrimination based solely on age by an employee of a company or a job applicant. Employers have an advantage in their available resources to show a hire or fire was not based on age. Even if an employee or job applicant has a legitimate case of age discrimination, it can be a career gamble to move forward with a complaint.
The truth is numerous employers do care about age. They care about age because older workers often come at a higher price. Furthermore, older workers are also many times seen as having lower energy and having obligations that might take away from focusing on work or a career.
When it comes to company profits and balance sheets older workers are often seen as a liability. A lot of companies still fail to realize the long-term profits an older worker might bring with more experience. Both older and younger workers bring pros and cons to every company. The problem is older workers are most often only seen as a dollar sign and for this reason discrimination in the workplace based on age is not going to fade away any time soon.