Ageism In the Workplace – Ask #HR Bartender

Last year marked the 50th anniversary of the Age Discrimination in Employment Act (ADEA), which prohibits discrimination against individuals 40 years of age or older. In a survey from AARP, nearly 2 out of 3 workers have experienced some form of age discrimination or age bias. Ageism is a huge issue for organizations, especially given today’s labor market.

Today’s reader note is a long story, but given the
statistics above, it’s one that I believe is happening more than we realize.

I’m looking for some advice and
came upon your site. I’m asking for a friend (honestly). My friend is 62 years
old, not computer savvy, and barely knows how to use email. EVERYONE knows
this. We are nurses, working at a small surgery center with less than 50
employees.

Our company does ALL pay
increases and raises at the same time. Strange, I had never heard of that.
Anyway, our boss emailed everyone a self-evaluation performance appraisal form
to complete and return.

My friend didn’t get our boss’
email because she has no access to email here at work. Thankfully, someone
printed out the form and gave it to her, telling her it was the self-evaluation
for her review and pay raise. However, she didn’t submit her self-evaluation.
Later, she asked our boss about the status of her review and pay increase. Our
boss informed her that all the reviews were completed and since she didn’t
return her self-evaluation, she doesn’t get a review or a raise. ‘Maybe next
year’ they told her.

Everyone else I know got their
review and a pay increase.

Anyway, my friend is afraid to
ask anybody about it, because she thinks she will get fired. Personally, I don’t
know how this type of action can be legal. I also feel she may be discriminated
against due to her age. Can you help or direct me to the proper place? Thanks
in advance.

I know there’s a lot going on in this story. I asked our
friend Kate Bischoff to share her knowledge. Kate is an employment attorney and
HR consultant at tHRive Law
& Consulting LLC. She’s shared her experience with us on several
occasions. One of my favorites are her comments in this post about the “Employee
Having an Affair with the Boss”.

Please don’t forget that Kate’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.

Kate, let’s start with a tough question. Do organizations
have an obligation to provide employees with email and computer access? I
understand that a lot of people have smart phones and internet access for their
personal lives, but is it a professional requirement?

[Bischoff] No legal requirement, but
if they are going to conduct business over email, like completing a self-review
to determine raises, fairness would dictate that the employer provide access. Giving
access is not hard, so it saddens me that this person couldn’t access it.

This also adds fuel to a
discrimination fire. If there was other evidence of possible discrimination and
the employer didn’t give access, a jury might very well find that the employer
was setting the employee up for failure.

Another tough question. If an employee isn’t tech savvy,
does the company have an obligation to train them?

[Bischoff] Again, sadly, no. While
many professions don’t require computer savviness, this is quickly changing
with employers and they are expecting employees to come with those skills. The
lack of skills is likely to disqualify someone from a position.

Follow-up question. Obviously, if using technology is
part of the job, that’s a different story. Are activities like completing a
self-evaluation or using employee self-service technology considered part of
the job?

[Bischoff] Absolutely.
If these activities were completed in furtherance of the job, they are part of
it.

Regardless of the age of the employee, if an employee
doesn’t complete the self-evaluation and that’s part of the overall performance
management process, can companies respond by not doing the appraisal or
awarding a pay increase?

[Bischoff] Yes,
and it appears this employer is going to get away with it. We know that
employees want feedback (positive and negative) and raises. If this happened to
one employee, it likely has happened to another.

The lack of
fairness is going to breed morale and employee engagement problems, especially
as employees start talking about it. And, employees have every right to talk
about their situation at work under the National
Labor Relations Act (NLRA) and
many state laws. This should be a significant concern for the employer.

Our conversation so far hasn’t focused specifically on
the age of the employee. Let’s switch gears. What is age discrimination? And
how does it differ from ageism?

[Bischoff] Age
discrimination is the unlawful use of age in employment decisions. Under the ADEA,
if an employer doesn’t hire someone because they are too old, then they are
discriminating. The same is true if the employer has different terms and
conditions of employment based on the age of the employee. Paying an older
employee less than young employees would be discrimination.

Ageism is
prejudice against someone because of their age and is often displayed by
comments like ‘hey, geezer’ or ‘digital
native’. Ageism
is often evidence of age discrimination like racism is often evidence of race
discrimination.

Last question. I’m sure we don’t know the entire
situation. And because the organization has less than 50 employees, there’s a
chance they don’t have an HR department. What can employees do to express their
concerns?

[Bischoff] Employees
must speak to a manager. Managers are ‘the organization’ even if there is an HR
department. They have a legal responsibility as ‘the organization’ to prevent
and stop age discrimination in the workplace. If they fail to do so, ‘the
organization’ can be on the hook for discrimination.

If speaking
to a manager doesn’t work, then employees could speak with the Equal Employment
Opportunity Commission (EEOC) or a state agency that deals with
discrimination laws.

I want to extend a HUGE thanks to Kate for sharing her knowledge about ageism with us. Please be sure to check out Kate’s blog for more insights. 

According to AARP, older workers are the fastest-growing segment of the workforce. This is important to organizations who are looking for good workers. It makes absolutely no sense to treat older workers badly or discriminate. Older workers can provide huge value to the company’s bottom-line.

But I can’t help but also send a message of tough love to older workers. Technology isn’t going away anytime soon. If you’re one of those people who is thinking about staying in the workforce as long as possible, then learning a bit more about technology is important. You don’t have to become a computer programmer to be proficient. Just something to think about…

Image captured by Sharlyn Lauby while exploring Disneyland in Anaheim, CA

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