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Equal Rights Division Newsletter - February 2020

Older employees in the workplace

The workforce is aging! The number of older adults (defined as those 45 years of age and older) working across the country in 2009 was about 61,000,000. In 2018, more than 68,000,000 older adults were working. People are living longer and many people at retirement age are unable to stop working for financial reasons. Unfortunately, older workers are too often denied work opportunities, harassed, or otherwise discriminated against in employment. Fortunately, there are legal protections.

Age discrimination laws

The Wisconsin Fair Employment Act (WFEA) and the federal Age Discrimination in Employment Act (ADEA) protect most workers age 40 and older from workplace discrimination. State law protects older workers from discrimination in discharge, job assignments, leave or benefits, licensing, retirement benefits, hiring, pay, promotion, training, and other employment actions.

The law also prohibits an employer from retaliating against applicants or employees who assert their rights under the law.

When is termination not discrimination?

If an individual is unable to perform essential job duties – either physically or otherwise – a termination may be lawful. First, however, the employer may be required to provide reasonable accommodations to older workers who are unable to perform essential job duties because of a disability.

When conducting layoffs, an employer may not lay workers off because of their age or transfer older workers to units where they are more likely to be affected by layoff. Additionally, layoff selection cannot be based on a person's eligibility for pension benefits.

How is age discrimination proven?

The employee or applicant has the burden of proving discrimination by showing:

• that he or she is 40 or older;
• that he or she was qualified for or was satisfactorily performing the job;
• that some adverse employment action was taken;
• that a younger worker was selected for the position or was treated more favorably.

An important question to answer is whether the employee's age was a determining factor in the adverse employment action taken. This can be shown by providing evidence of bias. For example, a supervisor who made a hiring decision made comments about "the old guy," or said that they were looking for "someone younger." It can also be shown by proof that the person selected was younger or that younger people were treated more favorably and not subjected to similar adverse employment actions.

How can employers prevent age discrimination?

The EEOC suggests the following tips to reduce age discrimination in the workplace:

1. Include age in diversity programs. More age diversity leads to better organizational performance and lower employee turnover. 2. Diversify your approach to hiring. Think of ways to reach older workers when advertising to fill vacancies. 3. Rethink your approach to interviewing. Make sure interviewers ask age-neutral questions. An age-diverse panel helps, too! 4. Engage older workers. Age is positively correlated with employee engagement. Workers 50 and older have the highest levels of engagement, according to an EEOC report.

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