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One strategy to combatting labor shortages is to focus on the older workforce.
That’s because ages 75 and older is the only age group whose labor force participation rate is projected to rise over the next decade. That’s according to U.S. Bureau of Labor Statistics projections for 2020 through 2030.
That group of workers’ labor force participation rate – or percentage of a population working or actively looking for work – is expected to increase from 8.9% in 2020 to 11.7% by 2030, which is also the decade that age group in the labor force is projected to grow by 96.5%.
“Employers are dealing more with older employees,” said Jim Grasso, a Phillips Lytle LLP partner who has more than 30 years of labor and employment law expertise.
Meanwhile, an older workforce could mean more possibilities for age discrimination.
There were nearly 13,000 and 11,500 age-related charges filed with the U.S. Equal Employment Opportunity Commission in 2021 and 2022, respectively. Those represented about 21% of the total charges filed in 2021 and 15.6% in 2022.
Grasso pointed out that those are just the cases filed at the federal level, not including those filed with state agencies.
“It is an ongoing concern and an issue for the EEOC and something employers face every day,” he said.
Business First talked with Grasso about the main considerations that employers should know when it comes to age discrimination in the workplace. Here are the takeaways:
Who can be a victim of age discrimination?
Age discrimination law applies to all New York state employers.
A handful of years ago, the state updated its human rights law to apply to all employers in the state regardless of their size.
What kinds of age discrimination are there?
There are two types to keep in mind: disparate treatment discrimination and hostile work environment.
The former is when someone is expressly discriminated based on age. For example, if a worker is passed over for a promotion or raise because they're too old.
The latter could stem from jokes, insults or stereotypes based on someone’s age that makes a worker feel uncomfortable or fosters a difficult work environment.
“Sometimes people say things, do things, it’s only a joke,” said Grasso. “But of course the person receiving it, it might not be. You can easily have hostile environment claim when you think you’re doing everything right.”
When does age discrimination come into play?
The law protects works from age discrimination throughout every stage of the employment process.
That includes job applications and the interview stage through employee termination.
How can my business avoid age discrimination?
It takes more than not having a mandatory retirement age. Employers should also make sure they don’t target specific age groups in the hiring process, from how they word their job advertisements to not asking for people's ages and years of high school or college graduation on job applications.
Make sure you have adequate processes in place.
“Have the right policies in place and trainings for supervisors and employees of the law and how they have to conduct themselves in the workplace to ensure they don’t unintentionally or intentionally discriminate based on age,” Grasso said.