Avoiding Discrimination in a Multigenerational Workforce

Avoiding Discrimination in a Multigenerational Workforce mediaphotos/iStock

The U.S. workforce is getting older as more baby boomers (people born between 1945 and 1965) remain in the workforce longer than past generations. The workplace has changed a lot since these individuals got their first jobs. New technologies and social media have made their mark, and older employees may not be as tech-savvy as their younger counterparts. Guess what happens when those “youngsters” are also the boss?

Younger managers supervising more seasoned employees can be a recipe for workplace tensions, and sometimes litigation. A recent webinar from Littler Mendelson, “New Challenges Avoiding Claims of Age Discrimination: How Generation X Bosses Manage an Aging Workforce,” explains how those in Generation X (those born between 1966 and 1985) and baby boomers can work together without sowing conflict, or worse, a lawsuit under the Age Discrimination in Employment Act.

“We have certainly noticed a trend with respect to the Generation X supervisors and managers, and difficulties they have with older workers,” said Nancy Delogu, a Littler shareholder who spoke on the webinar.

Delogu and Edward Ellis, a shareholder and cochairman of the firm’s whistleblowing and retaliation practice group, pointed to an abundance of data that show how boomers are increasingly staying put in the workforce. According to numbers from the U.S. Bureau of Labor Statistics, in 1992 less than 12 percent of U.S. workers were over the age of 55; by 2012, that number grew to 21 percent, and is projected to reach 26 percent by 2022. The Littler attorneys noted that the retirement age also has been rising steadily: in 2002, most people surveyed in a Gallup poll expected to retire at 63 (and actually retired at 59). When surveyed in 2014, the average expected age for retirement was 66, and the average actual age was 62.

“From the defense perspective, as an attorney I look at these numbers and I say: we are going to continue to see an increase in age-discrimination claims,” said Delogu. According to the Equal Employment Opportunity Commission, she’s right. The commission reports that it received 21,396 claims under the ADEA in fiscal year 2013, while back in 1997, it only received 15,785.

“One thing I’ve seen a number of cases on in the last couple of years is what I call the ‘case of the insensitive supervisor,’” said Ellis. He outlined a scenario that he’s seen before: a younger, ambitious and energetic Gen X supervisor is assigned to an older boomer employee who is much more settled, and perhaps looking to retirement down the road. The supervisor becomes concerned about the older employee’s less-energetic approach and wants him or her to be more proactive. The employee may allege that the new supervisor knows little about the business. The supervisor then begins to document their interactions, gets human resources involved, and along come the lawyers and the discrimination litigation.

So if a claim is filed against an employer under the ADEA, what are the chances of winning? Ellis believes the defense often has a decent shot. The best situation, he explained, is when the employee claiming age discrimination is let go while the company is in financial distress, as juries will understand that in these cases, lots of employees will have to get laid off, and it’s more difficult to prove that one stands out above the rest.

“The second factor is quality testimony from management witnesses,” Ellis said. “Management witnesses who are sincere, empathetic, concerned about the employees and good communicators are essential to an effective defense in an age-discrimination case.” If the plaintiff displays indifference to the quality of their work, or even just seems to have a sense of entitlement, he added, that can also sway a jury to the side of the employer.

However, even if the defendant wins the case, most employers would agree that it’s better not to have to deal with the stress, expense and distraction caused by an age-discrimination lawsuit in the first place. Ellis and Delogu agreed that thoughtfulness and better communication go a long way in preventing this kind of litigation. “It’s all avoidable if the supervisor takes the time and invests the energy to learn his employee’s point of view and work with him,” Ellis said.

There is plenty that companies can do to be more sensitive about the relationships between Gen X and the boomer employees. Besides just listening and communicating, the attorneys explained, companies can offer policies for older workers. For example, letting them work reduced hours while still receiving the same pension, retirement plan and benefits. Companies can also give older employees opportunities to mentor younger workers (and have “reverse mentoring,” particularly in areas such as social media that might be less familiar to earlier generations).

Part of the challenge for employers is to avoid causing a disparate impact, which occurs in age-discrimination cases when workplace policies that are neutral on their face actually have a negative effect on older workers. This can be a problem during conversations about layoffs. Delogu said that before a group termination occurs, the employer must look carefully at the factors that go into the decision with each individual. “Look for potential disparate impact,” she suggested. “If all of these people seem to be older, what are the criteria that we’re actually using?” If there’s no other reasonable fact other than age to justify termination, a spurned employee may have a solid discrimination claim.

A similar amount of care should be put into succession planning to avoid claims. “My advice is to treat every employee as if he or she might leave the company within one to five years, and for key spots do succession planning for all of them regardless of the age of the individual who holds that spot,” said Delogu. “And similarly, if there are people who have the skills to step into that role, don’t assume that the 62-year-old wouldn’t be interested in the role.”

Employers should also remember that it’s not just baby boomers that can file age-discrimination claims. In some jurisdictions, it is anyone over age 18. Ellis explained that some states’ laws protect employees from being discriminated against for being young. States such as New York and New Jersey have statutory protections against “reverse” age discrimination.

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