Despite 55 years since the passage of the Age Discrimination in Employment Act, some employers still engage in blatant age discrimination. That being said, most employers know to avoid telling an employee directly: “You are too old for the job.” Instead, they may speak in “code.” From age-old (pun intended) expressions like “you can’t teach an old dog new tricks” to more disguised comments like describing an employee as “Medicare-eligible,” here are the common offenders that employees should look for:
(1) Discrimination Camouflaged as Succession Planning
Succession planning is, without a doubt, a legitimate concern for businesses. But employers often mistake a candidate’s “youth” with longevity. How does an employer know that a younger employee will stick around longer than an older one? The truth is: they don’t. Younger employees may “job-hop” away from a position much faster than an older candidate would leave or retire. Be mindful of phrases that demonstrate the employer is using “succession planning” as a proxy for age discrimination, like:
- Looking for candidates who are “midcareer”
- Seeking employees who have enough “runway”
- Referring to a long-term employee as a “blocker” (meaning an older employee whose continued presence is “blocking” a younger candidate from rising in the organization)
- Labeling certain employees as “high potential” (if the organization only refers to be people under a certain age threshold as “high potential,” that is a problem)
(2) Aspirations for the Organization
Age discrimination sometimes appears in seemingly-innocuous expressions of high-minded goals for the business. It shouldn’t take long, however, to see that these comments are related to age:
- Bringing in “new blood”
- Looking for a “fresh face”
- Describing the workplace as a “high energy” or “fast paced” environment
- Getting rid of “old school” mentality
- Dispersing with the “old guard”
- Clearing out the “dead wood”
(3) References to Retirement
Discussions of retirement are not, of themselves, necessarily age discrimination. But remember: the boss is not asking your 30-something coworker what his retirement plans are, nor is he asking when he is planning on retiring. Questions about retirement are necessarily intertwined with age-related stereotypes, so be careful of expressions like:
- Describing someone as “retirement-eligible”
- Someone is “in the retirement window” or of “retirement age”
- Job positions, postings, or descriptions that express caps on years of experience (there’s nothing wrong with a minimum-years-of-experience threshold, but a limit on total years of experience is much more difficult to justify without wandering into age discrimination)
(4) Expressions of Concern
There’s nothing wrong with an employer being concerned about its employees – in fact, it should be encouraged! But an employer whose “concern” is simply derived from ageist stereotypes is not helping the employee – it is just engaged in a condescending method of age discrimination. Look out for:
- “Why do you want to keep working?”
- “Aren’t you ready to call it quits”
- “Maybe it’s time to hang it up”
- “Wouldn’t it be nice to spend more time with your grandkids?”
- “You are looking tired”
- “Shouldn’t you be playing golf?
(5) Teasing and Insults
In some workplaces, some good-natured “ribbing” is to be expected. If you find, however, that the jokes are age-related, keep in mind that the attempts at humor may reflect how you are being earnestly perceived. Be wary of:
- Jokes about how an employee is old enough to have witnessed some long-ago historical event
- Jokes about how an employee can or cannot do certain things “at his age”
- Age-related slurs like “fossil,” “relic,” “fogey,” or “dinosaur”
Unfortunately, there are many ways that employers can say, without stating explicitly, “you’re too old” to an employee or job candidate.
If you have concerns based on what you’ve heard or seen in your workplace, please reach out to request a consultation, visit Jack’s bio for his contact information to reach out to him directly, or call us at 216-696-1210 to see how our employment law attorneys can assist you.
