Code Words for Age Discrimination?

By Fiona Ong - Shawe Rosental LLP

April 6, 2023

Maybe it’s because I’m getting older (and crossed over that 40-year old cutoff for protection under the Age Discrimination in Employment Act (ADEA) a number of years ago), but a couple of recent lawsuit announcements from the Equal Employment Opportunity Commission caught my eye – and they provide some lessons for employers who are facing an aging workforce.

According to the Bureau of Labor Statistics, both the share and participation rate of older workers in the labor force is growing. With age comes experience and knowledge. But it sometimes also comes with things like declining productivity, increasing cognitive concerns, lack of skills for changing technologies, higher salary demands – or more troubling, incorrect assumptions about these issues. And that’s what led to the EEOC’s recent lawsuits.

Now I want to preface this by noting that the EEOC’s announcement tells only one side of the story, and there very well may be defenses, explanations, and inaccuracies that the employers would bring up. But taking the announcements at face value, the statements on which the EEOC focuses are problematic – and unfortunately not that unusual.

According to the EEOC’s first lawsuit, an applicant was interviewed for a professional medical sales representative role. He was allegedly told that he was not selected, despite being qualified, because the company was seeking “more junior” job applicants. The company hired a younger candidate instead. The EEOC noted that the company claimed that the applicant was not hired based on his salary requirements; however, it paid its new (younger) hire more than the amount that supposedly disqualified the older applicant.

In the second lawsuit, the EEOC asserts that a company manager asked an employee repeatedly about retirement as she approached her 65th birthday, including directly asking her, “When are you going to retire,” “Why don’t you retire at 65,” and “What is the reason you are not retiring?” When the employee said she had no plans to retire, the company eliminated her position, supposedly due to economic uncertainty. But less than a month later, it hired a younger worker for the same position.

With regard to the first case, most employers understand that telling an applicant or employee that they’re “too old” or “we want someone younger” is illegal under the ADEA. As the EEOC notes, terms like “more junior,” “too senior” or “overqualified” have been found to be euphemisms for age discrimination. It’s important for employers to focus on the objective job qualifications and equally important that they do not make assumptions about the workers based on their age – or stand-ins for age, like experience level, salary level and the like. If there is a concern that a potential step down might give rise to job dissatisfaction or unrealistic expectations, it would be fair to ask a senior level applicant for a junior role about their understanding of the role and expectations about job responsibilities or salary.

As for the second case, wise businesses should be thinking about the future and engaging in succession planning. And realistically, older workers do eventually retire (or otherwise depart, but let’s not be morbid about it). So wanting to know when someone might be retiring is obviously of significant interest. But any conversations around this topic must be carefully handled. Certainly, suggesting that someone should retire is a wide-open invitation for an age discrimination claim. And even asking, “When are you going to retire?” can come across the wrong way. A better way to open the discussion might be, “What are your plans in the next 3-5 years?” And then, keep the conversation open and supportive – it is important that the employee does not feel like they are being pushed out. Certainly, do not eliminate their job position and then create a very similar position for which a younger individual is hired – any job elimination and new position creation needs to be demonstrably tied to business needs.

And contrary to the adage, you can, in fact, teach an old dog new tricks. But perhaps do not call them “old.”

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