The world is striving towards equality for all in so many ways, one of which is the workplace.
While things like Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin, one facet it does not explicitly tend to is age. The Age Discrimination in Employment Act helps with this, but it isn’t airtight.
Employment discrimination cases are on the rise, and many older adults in the workplace feel they are not being protected against ageism in terms of both being an employee and also in being an applicant for potential jobs. A recently passed bill will help with the latter.
Earlier this year the U.S. House of Representatives passed the Protecting Older Workers Against Discrimination Act or 2021. This is a further clarification on the ADEA, saying that external job applicants can bring disparate impact discrimination claims under the ADEA.
The law also requires the Equal Employment Opportunity Commission to conduct a study on the number of job applicants impacted by age discrimination and issue recommendations on how to address it.
Impact Versus Treatment
Several courts have held that such impact claims cannot be brought by outside job applicants under the current wording of the ADEA, whereas disparate treatment claims are already covered.
Here’s the difference: Disparate treatment happens when an individual is treated less favorably because of a protected characteristic. For example, a business may not hire someone over the age of 40 because of a policy it has.
Disparate impact happens when a seemingly neutral policy or practice has a disproportionately negative effect on individuals with a protected characteristic (such as being over 40).
COVID-19 Was A Catalyst
When the pandemic hit, many people lost jobs and had to seek out new employment. This put a spotlight on a big problem for people 50 or older: they had a much harder time gaining employment due to their age, to the point that some online job applications did not list their birth year as an option.
According to the Urban Institute, more adults aged 65 and older left the workforce in 2020 than in any year since 1948. This amounted to a 13-percent decline in employment for seniors, the largest drop of any age group.
This new bill is meant to help people recover from the pandemic, and protect future older generations seeking to switch jobs be it of their own accord or due to losing employment that was not in their control.
It Addresses a Very Common Problem (That Isn’t Often Recognized)
There are many laws out there that help with equality for a number of groups, but ageism seems to be overlooked more than laws dealing with sex, religion, and ethnicity.
Experts say age discrimination is common in hiring. Managers are often on the hunt for younger workers, who tend to be willing to work longer hours for less pay.
Additionally, hiring practices such as putting applications explicitly online might also leave some older workers at a disadvantage.