A New Challenge for Employers
“I am not young enough to know everything.” ― Oscar Wilde
No. We're not referring to the frenzy around the Dynamex decision and the imminent legislative expansion by Sacramento in AB 5 (although if you're an organization that classifies any of its workers as Independent Contractors, we need to talk). We're addressing an issue that is likely to be relevant to a more significant swath of employers. Oscar Wilde wisely observed that age and experience tend to instill some humility in us—we simply don’t know it all. His timeless aphorism also holds some lessons for California employers, among them that (1) older employees supply much-needed wisdom and skill to the workplace, and (2) assuming that your old way of thinking is right can be downright foolhardy. Faced with an older workforce, employers would be well-advised to keep Oscar Wilde in mind, understanding the benefits and challenges of an aging demographic.
It’s a fact: Californians aren’t retiring and are working longer than ever before. The number of Californians 65 years of age and older increased by 3% last year, and older Californians were 14% of the state population in 2018. The raising of Social Security’s full-benefit retirement age has coincided with an increase in Californians deciding it makes financial sense to continue working longer than their parents did.
As a result, employers may increasingly face age discrimination claims if they are unprepared to navigate this new (and older) demographic terrain. In 2014, 1,569 age discrimination complaints were filed with the EEOC in California alone. In 2015 nearly 21,000 were filed nationwide. Just last month, Google agreed to pay $11 million to end a lawsuit accusing the internet giant of discriminating against older job applicants - a deal that resulted in an average pay day of more than $35,000 for each of the 227 applicants who joined the class action. The settlement also requires the company to train managers on age bias, create a committee focused on age diversity in recruiting, and ensure that complaints are adequately investigated.
The California Legislature seems to have a soft spot for employee protections, and age discrimination is a darling of the bureaucrats (perhaps due to the reliable voter turnout of that constituency). In California, employees are protected against age discrimination by two main sets of laws: (1) The Federal Age Discrimination in Employment Act, and (2) California’s Fair Employment and Housing Act. While there is some nuance in their interplay, ultimately an employee must prove the following elements to prevail on an age discrimination claim: (1) the employee is 40 years old or older, (2) the employee was adversely affected by an employment action, and (3) the employer took such an action because of age. It certainly doesn’t take much to meet these requirements.
So, what should an employer do to ensure it isn’t inviting an age bias claim?
- Start at the Beginning. A smart employer will evaluate its policies even before an employee is hired. Take a look at recruiting materials and remove language that targets younger demographics, such as “recent graduate,” or that references upper limits of experience. Be wary of questions in the interview process that are likely to reveal age or suggest a youthful workplace culture.
- Evaluate Your Priorities. Encouraging morale and teambuilding across the age gap can result in not only common ground between employees of different ages but can also make a really great place to work. Don’t limit work-social events to happy hour on a Friday night. How about a baseball game on a Sunday afternoon? Or a family BBQ over a long weekend? Employees who feel included, regardless of age, are generally happier employees.
- Do Some Soul Searching. You’re probably noticing a common theme among our articles, but this bears repeating: one of the most effective ways an employer can prevent claims is by performing a meaningful evaluation of office dynamics before a concern ever becomes a lawsuit. Employees generally just want to feel heard. Even an off-the-cuff comment can mask a deeper level of dissatisfaction. Take the time to look into the issue and make changes if necessary.
- Document. Document. Document. If there isn’t documentation, it didn’t happen - or at least it will be much more difficult to prove. When action is taken to correct employee behavior (of any type), the reason should be well-supported and documented fully. Without contemporaneous evidence, a wise attorney will use this oversight to suggest pretext for discrimination, and a failure on the part of the employer to correct inappropriate behavior. Don’t be that employer.
While this author is a long way from collecting Social Security (if it’s there when I reach retirement age), I’m convinced that California policymakers got this one right. Older employees bring not only job-related experience but life experience that can’t be taught in a classroom or bought at a university. The contribution of an experienced workforce should be respected, and an employer should ensure that they aren’t excluded in a culture that glorifies youth. As we like to say, “It’s good for you, it’s good for your employees, and it’s good for the bottom line.”
For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.