In September 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued a finding that between 2013 and 2018, IBM engaged in systemic age discrimination. In its findings, the EEOC noted that 85.85% of workers considered by IBM for layoff were older workers.
Many companies today are focused on diversity and inclusion efforts, but in 2018 the EEOC published a report on “The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA)” and found that age discrimination continues to be pervasive. The report determined that “assumptions about age and ability continue to drive age discrimination in the workplace.” And the EEOC further reported that “most people have specific negative beliefs about aging and that most of those beliefs are inaccurate.” The EEOC also found that there is a widespread “perception that age discrimination exists in our workplace.”
Diversity is about more than gender, race, national origin, sexual orientation, disability, or religion. Diversity is about age, experience, perspective, and background. Most diversity initiatives use a broad definition of diversity, but older workers consistently believe that they are either ignored or implicitly disfavored in corporate America.
Anecdotally, I can confirm that the perception is prevalent. Our office regularly hears from executives about coded language implying age discrimination. Whether it is reorganizations focused on “delayering” and “agility” or hiring practices focused on “early professional hires” (as noted in the EEOC’s IBM determination), executives are made aware of the corporate focus on youth hires.
The likelihood of pandemic layoffs and lawsuits should make age a more prevalent issue for diversity initiatives. Last month, the ABA Journal published an article predicting a flood of age discrimination lawsuits from COVID-19 and the economic downturn. The article reported that, “[w]hile age discrimination in U.S. employment and hiring has long been pervasive, the pandemic has raised the stakes for both employers and employees.” Fear of exposing older workers to COVID-19, fear of the health care impacts that could result from such exposure, and general biases against age create a perception for employers that older workers are risky employees.
While age discrimination claims are likely going to be on the rise, they face unique challenges as compared to other forms of discrimination. Title VII claims of discrimination require a plaintiff to establish that the discrimination was a motivating factor in an adverse employment action. However, based on the 2009 U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc., plaintiffs pursuing claims under the Age Discrimination in Employment Act (ADEA) must prove that their age was "the reason" for the adverse employment action. That means if there are any other factors that influenced the adverse action, the claim is defeated.
Regardless of the challenges, more claims are likely to be filed as layoffs increase and the job market shrinks as a result of the pandemic. If employees are in a workplace that lacks an emphasis on diversity and inclusion, and if they receive signals that more experienced workers are less desirable, they will likely be more apt to file age discrimination claims. The likelihood of lawsuits can be reduced, however, by consistently ensuring an inclusive workforce and a healthy workplace culture. One way to accomplish this is through regular and meaningful workplace trainings.
Employees who know they are valued on the basis of many factors, including age and experience, are less likely to perceive ulterior motives in a company’s decisions. They will be more likely to understand the financial impacts of COVID-19 and the potential necessity of job cuts. And during employment, they are more likely to bring their full selves and a sense of commitment to their work, just as the company is dedicated to helping them thrive.
In light of the EEOC report on IBM, business owners and managers should ask themselves, “Are older workers feeling recognized and included in my organization?” If not, they should take concrete steps to make age and experience valued aspects of their workforce and to demonstrate that commitment on a regular basis.