Age Discrimination Blunders That Could Sink Your Small Business – Part II

Older workers bring specialized and unique talent to your small business. We continue the second part of this blog post series and cover six common age discrimination traps that could land your small business in hot water.

Common Age Discrimination Blunders

These situations underscore the serious legal and financial risks associated with age discrimination. Here are some blunders to keep in mind:

1. Be Aware of Age Discrimination Laws

The Age Discrimination in Employment Act (ADEA) was passed in 1967 and protects workers aged 40 and older from discrimination in all aspects of employment, including hiring, promotions, wages, and terminations.

We will provide some hypothetical situations that can be perceived as age discrimination if not careful.  Keep in mind that each situation does not include all context and only provides basic examples of what could be perceived as age discrimination.

• Offering a 25-year-old candidate a job that you have posted requiring 10+ years of experience versus a 40-year-old candidate.

• Promoting a 30-year-old employee because the 60-year-old employee informed you they’d be retiring within the next 2 years.

• Allowing a 28-year-old employee to attend a training because you believe they would benefit more from the training than the 50-year-old employee who also requested to attend the training.

• Selecting a 55-year-old employee to lay off during a downsizing instead of a 35-year-old employee in the same position.

• Terminating a 46-year-old employee for subpar performance, but not addressing the similar subpar performance of a 31-year-old employee.

Solution: Make employment decisions based on objective criteria only, removing all bias. Implement “bias-proof” processes such as consulting an HR expert like CPR or diversifying people involved in decision-making.

2.  The Retirement Pressure Cooker

The next most common form of age discrimination is asking older employees about their retirement plans or pressuring them to retire. These actions can quickly veer into discriminatory territory. The EEOC says, “the right to decide a retirement age lies with an employee, not their employer.” An older worker’s hospitalization, actual disability, or perceived disability does not disqualify them for their position.

Solution: Let employees initiate retirement discussions. If you need to plan for succession, do so for all key positions no matter the age of the person in the role, not just those held by older workers.

3.  The "Cultural Fit" Conundrum

Yes, you want employees who mesh well with your company culture. But be cautious - using terms like "energetic," “recent graduate,” or "young and dynamic," in job postings or interviews as these words can be interpreted as code for "young." This seemingly innocent language could be seen as discriminatory against older applicants.

Solution: Focus on specific skills and experiences required to do the job effectively, rather than age-related stereotypes. It’s ok to use fun language but avoid any subjective language that is difficult to measure.

4.  Watch Your Language

Seemingly casual comments about age can be used as evidence of discrimination.  Some older workers may even joke about their own age, so it opens the door to others to join in on the fun. This is dangerous territory and should be avoided as you can follow with potentially discriminatory language. 

Solution: Avoid age-related remarks in the workplace, even if they're intended as jokes. Avoid at all costs, even if an older worker mentions their own age. Foster a workplace culture that values diversity, including age diversity. Encourage multigenerational teamwork, mentoring programs, and cross-training.

5.  Focus on Skills, Not Age

When making hiring or promotion decisions, concentrate on the candidate's skills, experience, and ability to perform the job—not their age. Ensure that employees of all ages have equal access to training, development opportunities, and challenging assignments.

Solution: Document decisions carefully keeping clear records of all employment decisions, showing they're based on job-related factors, not age. Provide opportunities for development based on skills and not on age. Provide regular training to managers and supervisors on age discrimination and the importance of fair treatment for all employees. Do not assume that someone later in their career is not just as interested in training or professional development as someone earlier in their career.

6.  The Technology Trap

Assuming older workers aren't tech-savvy is a dangerous stereotype. Incorporating in a job posting that you are seeking a “digital native” is discriminatory. Denying employment opportunities or training based on this assumption is a clear form of age discrimination.

Solution: Offer technology training to all employees, regardless of age, and assess technology skills objectively during hiring.

Conclusion

What matters most is not the age of your employees, but their ability to contribute to your company's goals. It's crucial to create a workplace that values employees of all ages. Older workers bring valuable experience, while younger employees can offer fresh ideas. Your small business can thrive when you blend this diversity. By creating an age-inclusive workplace, you're not just avoiding legal trouble - you're tapping into the power of a diverse workforce.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.