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Navigating Problem Areas of the ADEA

The Age Discrimination in Employment Act (ADEA) is very simple in concept. But it requires that employers examine all of their practices to be sure that they are age-neutral. Compliance begins with the employer's first contact with a prospective candidate and lasts through discharge or retirement.

To steer clear of age discrimination claims, be vigilant about these problem areas of the ADEA: job ads and applications, interviews, promotions and demotions, harassment, terminations, layoffs and retirement.

ADEA Hotspots

• Advertising: Before the ADEA, it was not uncommon for employers to include maximum age requirements in their advertising: "No one over 35 need apply." But since the enactment of the federal law, employers know that such blatant ageism isn't legal. Yet job ads may have other, more subtle language suggestive of age bias that can land an employer in court: "young and energetic worker;" "recent college graduates only;" "youthful work environment."
• Interestingly, the ADEA does not prohibit phrases such as "prefer retirees" or "seeking older applicants." A 2007 EEOC rule clarified that employers can create employment ads specifically targeting older workers. However, some state laws do prohibit such advertising, so proceed with care. If you want an older candidate, consider such age-neutral expressions as "experience a plus" or "mature judgment preferred."
• The application: If an employer is accused of age bias by someone who is turned down for a job, the questions asked on the application and in the interview will be scrutinized for evidence of discrimination. Therefore, the application should focus on job-related experience and qualifications. It's not illegal to ask for the candidate's date of birth, graduation from high school, college or beyond. But employers who request this information on application forms will, if asked, have to prove that this data was sought for a legitimate purpose. You may request employment history that includes dates, however.
• The interview: Focus on experience and keep the questions job-related - period . It's not illegal to ask "How old are you?" but it can be problematic and put you on the defensive. Interviewers should also avoid telling a candidate he or she is overqualified (which can be code for "too old") or hinting that the applicant may not "fit in with all the Generation Xers at our company." Similarly, don't bring up a prospect's retirement plans, or think out loud about whether they'll stay long enough so that training them will pay off. Such statements can provide clues that age discrimination has taken place.
• Part-time work: It's acceptable to fill part-time jobs with older workers but not at the expense of denying them full-time work if that's what they want. To head off an ADEA issue, ask all applicants if they'd prefer part or full-time work. In other words, what you offer to one demographic must be offered to all. Train managers who do the recruiting on the questions they must avoid.
• Promotions and demotions: Again, provide a level playing field. When it comes to advancing or demoting someone, make sure that both older and younger workers are treated strictly on the basis of their credentials, not their age. Promotions should be justified by documentation in the employee's personnel file showing that the chosen candidate merits the job action over a rival. Create specific position statements for every job so you can rely on the match between the employee's qualifications and the requirements of the job.
• Harassment: Age-related jokes or comments that are directly or indirectly sanctioned by management could be cause for age discrimination charges. This includes, for example, pointing out an employee's gray hair or aging appearance, or making joking remarks which suggest that the person is of a certain age ("I wasn't even born yet.") Such remarks can be viewed as evidence of a corporate state of mind which is hostile to other workers and can form the basis for an age discrimination case. There must be an office policy and atmosphere that forbids such conduct, and the employer must take swift action to punish offenders. Otherwise the employer may be seen by courts and juries as condoning this behavior.
• Terminations: Terminations are the single largest cause for age discrimination lawsuits. Before you decide to fire someone, have a neutral party such as the HR department, review your decision to make sure it is really based on performance. Most employees serve "at will," meaning you don't need cause to fire them. But you cannot terminate for an illegal reason such as age. You may be required, if an age claim is made, to explain the legitimate, non-discriminatory reason for your decision to fire an employee.
• If you don't have a reason, or the reason you give is false, discrimination may be inferred. That's why employers must document, before the termination, the true business reasons for the firing. "If you can't explain with documentation why the 58-year-old customer service rep is being fired rather than her 28-year-old counterpart, don't fire the 58-year-old," advises David Rosenthal, a labor and employment attorney with the national law firm Nixon Peabody. "Documentation of performance problems is the single best defense to an age discrimination claim."
• Layoffs: If you must do a layoff, compare the ages and personnel files of all those selected for termination with the ages of workers who have been spared. If the lineup is heavily weighted against older workers, the group selected for layoff should probably be reconfigured to include more younger workers. "It's very difficult to explain to juries, many of whom may be older, that it is merely a coincidence that three-quarters of the terminated employees just happen to be 50 or over," Rosenthal explains.
• Retirement: The ADEA approves voluntary retirement plans, but they must truly be voluntary. What you cannot do is to require a worker to retire because of age. If, for instance, an employer wants to fire a 65-year-old worker because she's making a lot of mistakes, the manager can't talk about retirement. The manager could say, however, "I'm concerned about the mistakes in your work," and discuss the performance issues. Then document problems, set expectations and provide feedback. Steer clear of euphemisms like "you're slowing down" or "maybe it's time to think about playing more golf."
• Following the letter of the ADEA is critical. The key is to thoroughly train managers and HR staff on the ins and outs of the age discrimination statute and to change employment practices accordingly. Armed with a clear understanding of how to apply the law, you will find it easier to create an environment that values all employees, regardless of age.

Additional Resources

Age Discrimination: What Employers Need to Know
This AARP publication covers age discrimination laws, evolving issues, trends, and age equity in the workplace.

State Age Discrimination Laws in Employment
While state laws are similar in intent to ADEA, there are differences that are important to understand.

Are You Ignoring Older Workers?
HR Magazine examines the subtle forms of age bias that persist despite the requirements of the ADEA.