Ageism impacted me personally, and I’m sure ageism hurts people in your workplace, too. People feel devalued, marginalized, and dismissed; they feel their identity as a professional, and even as a human, is called into question, and ultimately negated. It’s emotionally traumatic, and a harmful example for the younger workers looking to their own future.
Those are the right reasons to care about age bias. But even if you don’t care about age bias for the right reasons, you should still care about it for a simple, inarguable reason: because it’s against the law.
Right now, in our society, those who are marginalized, harassed, or pushed out of their jobs due to ageism largely choose to just let it go, and get on with their lives. Considering the sheer size of the boomer demographic, imagine what would happen if this population of discriminated people decided not just to let it go. What would it look like if everyone who was the victim of ageism refused to sit back and take it? What kind of legal liability—and financial exposure—do all companies, regardless of industry, face?
I’m sure you noticed that when the #MeToo movement took hold, it provided a safe place for huge numbers of women to say “no more” not just to incidents going forward, but also to look backward and call out sexism and harassment from their past. Fortunately, many of the companies and organizations named had already made improvements, and could demonstrate progress. I suspect the same will not be true in the case of an #ImNotDone movement.
The potential exposure is vast. As a business leader, you can’t ignore this risk.
What is Age Discrimination, Legally?
According to the US Equal Employment Opportunity Commission (EEOC), age discrimination involves treating an applicant or employee less favorably because of his or her age. The Age Discrimination in Employment Act, enacted in 1967, forbids age discrimination against people who are age 40 or older. This law prohibits discrimination in any aspect of employment, which includes hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment.
Despite the clear legal definition, there are many misconceptions about what constitutes age discrimination. People often assume that being a victim of age discrimination means simply that you were suddenly fired outright or laid off because of your age. What I find interesting about the legal definition, though, is that all aspects of a person’s employment experience are protected, not just termination. The Act is actually quite broad, and certainly broader than most people realize. For example, if an older worker is treated badly in the workplace, that’s age discrimination. And in fact, there’s a pattern of that happening more often.
Legal Claims of Age Discrimination
Lawsuits, of course, are another sign that your company is ageist. Here are some of the claims that fall under the broad banner of age discrimination:
- Harassment and unwelcome comments by a boss, peer, or subordinate. If this sort of thing is happening on a consistent basis, that’s something that a lawyer will ask about, and will document and include in a claim.
- Favoritism and unfavorable comparison to a younger employee. Do you see your boss continually gravitating towards certain people? Are those certain people consistently younger people?
- Uneven discipline.
- Passed over for promotion past age fifty. If you’re someone who has been routinely promoted but those promotions cease when you turn fifty, that may be a sign that your organization is ageist.
- Younger employees being hired after a layoff. Younger people being hired for job postings. Employers have every right to lay people off, but smart companies make sure that when doing large layoffs that they select people from every age cohort so they aren’t disproportionately laying off senior workers. When rehiring, though, some companies fail to follow the same policy, and only rehire younger (and cheaper) workers.
- Milestone changes. For example, does something change at work when an employee turns fifty or sixty?
- Discriminatory policies or procedures, such as when family leave is only offered to women of child-bearing age.
- Age-related job notices and advertisements. It’s generally illegal to include age preferences, limitations, or specification in any job notice or advertisement.
- Internships or apprenticeship programs that are too favorable to younger employees.
Each instance alone may not always or irrefutably signal age discrimination, but be aware that this kind of behavior at a company could be used, and has been used, against it if someone makes an employment claim.
The Costs of Ageism
What is probably the most common form of age discrimination—and more insidious because it is less obvious—is sidelining, marginalizing, or putting an older worker in a role where she no longer has the opportunity to perform at her best. It’s believed that a lot of companies take this approach to avoid paying severance. Said another way, they just put people in sub-optimal situations and hope that they’ll quit.
When I interviewed lawyers familiar with age discrimination and ageism, they all agreed that being marginalized is legally admissible as evidence of age discrimination. Basically, if it can be proven that sidelining or marginalization is being done differently to someone who’s in a protected age group, that’s age discrimination.
Older workers are typically paid more, so from a pure dollars-and-cents perspective, it makes business sense to get rid of them first. That’s a big part of the reason they are being marginalized or pushed out. But if marginalization is practiced systematically, and other solutions aren’t even considered, the potential financial blow to the business due to legal liability is far higher than potential payroll savings.
I feel strongly about the importance of being good at what you do. I would never argue that someone who isn’t performing well deserves to keep his or her job, regardless of age. But most of the people I talked to who felt marginalized or pushed out or were actually pushed out were at senior levels and had never had a bad performance review. If there had been performance issues, they would have been weeded out of the organization already. Thus, there was no indication and no reason for them to believe that it was performance-based.
It pays, both financially and morally, to be aware of signs of ageism at your company, and stopping age discrimination before it costs your company hugely just makes sense.
The following is adapted from I’m Not Done: It’s Time to Talk About Ageism in The Workplace.
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