Age Discrimination in the American Workplace: HR Strategies

Introduction: A Changing American Workforce

The face of the American workforce is undergoing a rapid transformation. It is no longer dominated by white males or composed exclusively of workers under 40. The structure of the workforce is changing, and that shift demands corresponding changes within organizations. The American corporate world needs to wake up to changes documented by numerous studies and research projects. Organizations must adapt to these changes before they create massive problems. With people from diverse ethnic, social, and generational backgrounds entering the workforce, companies need to make meaningful adjustments to their policies in order to embrace the new workforce reality and cultivate a friendlier, more flexible organizational culture. Where such changes are resisted, discriminatory practices emerge, giving rise to employment discrimination in which certain disadvantaged groups become victims of biased organizational policies.

This paper examines the changing characteristics of the American workforce, defines employment discrimination, and discusses the changes that human resource managers need to be aware of and adapt to in order to successfully manage a multi-ethnic, multicultural workforce.

According to research conducted using the Occupational Outlook Handbook, a highly visible change was projected to occur in the American workforce by the end of 2005. Ronald R. Sims and John G. Veres (1995) present the findings of the Occupational Outlook Handbook (U.S. Department of Labor, 1992–93 edition) and Workforce 2000 in their book Human Resource Management and the Americans with Disabilities Act:

It is clear that the American workforce was moving toward greater diversity, a shift likely to revolutionize the way organizations operate and implement policies. However, this diversity also creates alarming potential for employment discrimination. Discrimination not only harms the organization that refuses to embrace change, but also seriously injures the individual who becomes its victim. While employment discrimination is commonly associated with harm to Black workers, minorities, and women, research indicates that discrimination affects men and women almost equally, though for different reasons. Women more frequently face discrimination due to gender, while men may encounter it due to disability or disease. In some studies, gender was also found to be a basis for discrimination against men, particularly in cases where immediate supervisors were female. This raises the central question: what exactly is employment discrimination, and which segments of society are most likely to become its victims?

The most important legislation addressing employment discrimination is Title VII of the Civil Rights Act of 1964. Title VII clearly prohibits employers from discriminating on the basis of sex, color, or race, and provides:

Title VII of the Civil Rights Act of 1964

"It shall be an unlawful employment practice for an employer: (a) to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin."

This legislation provides broad protection against employment discrimination. As long as a person is able and willing to work and their skills match the job for which they have applied, they cannot lawfully be discriminated against. Discrimination takes many forms. The table below, derived from Wendt (1993), illustrates the bases of discrimination charges filed by men and women:

Table 1 — derived from Wendt (1993)

Age Discrimination and the ADEA

Employers often discriminate on the basis of age, pushing competent employees out of work. Older or more senior members of the workforce are sometimes not hired or are given premature retirement because their age is perceived as an impediment to productivity and growth. According to one study (Wendt et al., 1993), age discrimination can affect even employees with long periods of service within an organization. While newly hired senior employees are sometimes dismissed without cause, long-serving employees are also vulnerable to age-based prejudice. For example, one woman who had been working with her organization for 44 years was discharged from her position as store clerk without prior notice. Similarly, a male purchasing manager who had served for 42 years stated upon his termination: "In the past, reductions in force followed seniority. I had the most seniority in the company. My younger, subordinate employees in Purchasing were retained. Of the ten employees cut, all were over 40." (Wendt, 1993)

Consider the case of Max, who believes he was discriminated against because he was over the age of 50 and because he had written a positive recommendation letter for Pete, an employee who was slated to be fired. These could be assumptions, but they could also be legitimate grievances — and Max may be able to prove that he was the victim of discrimination.

How would he prove it? Does he need to show that he is over 50 and that a younger person was hired to replace him? Not necessarily.

The most important piece of legislation in this context is the Age Discrimination in Employment Act (ADEA) of 1967. The ADEA offers protection to workers aged 40 and above and clarifies that a critical factor is not simply whether someone younger was hired, but whether that younger person fell outside the protected class — that is, whether they were under 40.

Under the law, what a claimant needs to establish is a record of satisfactory performance. Since Max has never received a negative performance review, this fact alone is strong evidence that his termination was not based on legitimate performance grounds. DiCesare (1996) addresses this point directly in an article on age discrimination, noting that the Supreme Court removed the strict requirement of demonstrating an age gap in order to bring suit under the ADEA:

"A unanimous U.S. Supreme Court has decided that an employee does not have to show that he or she was replaced by someone younger than 40 to bring suit under the Age Discrimination in Employment Act (ADEA) of 1967. Ruling in O'Connor v. Consolidated Coin Caterers Corp., the High Court declared that discrimination is illegal even when all the employees are members of the protected age group. The recent decision in this case supported the position taken by the Equal Employment Opportunity Commission."

In other words, if an employee believes they have been discriminated against, what must be proven is that charges of negligence or poor performance were unfounded and that the person who replaced them was outside the protected class under the ADEA. Quarterly performance reports or similar appraisals can serve as evidence that the employee's work was satisfactory. This standard makes it relatively straightforward for Max to support his discrimination claim. As Justice Scalia wrote, the ADEA "does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older." (DiCesare, 1996)

Conclusion

Sims, R. R., & Veres, J. G. (1995). Human resource management and the Americans with Disabilities Act. Quorum Books.

Barrett, R. S. (1998). Challenging the myths of fair employment practices. Quorum Books.

Tucker, W. (1994, March 14). The changing face of America's workforce. Insight on the News, 10(11).

Folger, R., & Greenberg, J. (1985). Procedural justice: An interpretive analysis of personnel systems. Research in Personnel and Human Resource Management, 3, 141–183. JAI Press.

DiCesare, C. B. (1996). Age discrimination. Monthly Labor Review, 119(7), 51.