Before the pandemic, age discrimination was prevalent in workplaces. The EEOC reports that in 2018, about 6 out of 10 workers aged 45 years and older say they experience discrimination on the job.
A 2015 survey found that 75% of older workers found age an obstacle in job hunting. COVID-19 made the situation much worse.
Not only do older workers deal with discrimination, but they are at a higher risk of developing serious complications from the virus. According to the Society for Human Resource Management, older workers were hit the hardest by job loss during the pandemic, which is unusual during a recession. As offices reopen, employers need to be careful to avoid age discrimination in rehiring.
Lawyers expect age discrimination lawsuits to increase.
Last September, Harris Meyer published an article in the ABA Journal that predicted a “flood of age discrimination lawsuits” from the pandemic. Employers who have good intentions by keeping older employees out of the workplace to protect their health are still guilty of age discrimination.
What can employers do to avoid age discrimination?
It may be fine line between making sure you don’t discriminate based on age while offering ADA accommodations. The first thing employers should do is to know what laws apply based on their location. Some states exempt employees over 65 from returning to the workplace out of safety fears, meaning that those employees can still get unemployment. Other states are cutting benefits if employees don’t return to work, regardless of age.
There are some jurisdictions that have passed legislation about which workers have the right to be recalled. Next, review your own policies and agreements with laid off and terminated employees. You may want to consult legal counsel to make sure you’re covering your bases.
As you rehire, whether you’re bringing back former employees or hiring new team members, do not make hiring decisions based on age. Keep good documentation about your decisions to terminate certain employees. If you are citing poor performance, make sure to have a record of that. Don’t terminate older employees who have bigger salaries just because of lower sales. Monitor your words (and that of your hiring team) to avoid bias in hiring and firing.
Provide accommodations or not?
According to the SHRM, “Workers age 40 and older are protected from bias by the Age Discrimination in Employment Act; however, that law doesn’t require employers to make accommodations for safety concerns.”
Still, employers can provide flexibility for workers, but it largely depends on the type of job. Reaching an accommodation for an office worker will be much easier than accommodating a sanitation worker.
Employers should assume that workers aged 40 and older can return to work. When the need for help is raised by the employee, enter negotiations for accommodations. Don’t initiate the conversation, and absolutely avoid any references to age.
Know that the environment may change as the pandemic continues to affect workers.
Be thoughtful about your hiring practices moving forward to avoid costly litigation from age discrimination.