Man facing age discrimination


Avoiding Code Words for Age Discrimination

Man facing age discrimination
27 Jul

It is well known that the share and participation rate of older workers in the labor force is growing. According to the Bureau of Labor Statistics, the labor force is expected to increase by 8.9 million, or 5.5 percent, from 2020 to 2030. The labor force of people ages 16 to 24 is projected to shrink by 7.5 percent from 2020 to 2030. Among people age 75 years and older, the labor force is expected to grow by 96.5 percent over the next decade.

With age comes experience and knowledge. But it sometimes also comes with things like declining productivity, increasing cognitive concerns, lack of skills for changing technologies, higher salary demands – or more troubling, incorrect assumptions about these issues. And that’s what led to the EEOC’s recent lawsuits.

It should be noted that the EEOC’s announcement tells only one side of the story, and there very well may be defenses, explanations, and inaccuracies that the employers would bring up. But taking the announcements at face value, the statements on which the EEOC focuses are problematic – and unfortunately not that unusual.

According to the EEOC’s first lawsuit, an applicant was interviewed for a professional medical sales representative role. He was allegedly told that he was not selected, despite being qualified, because the company was seeking “more junior” job applicants. The company hired a younger candidate instead. The EEOC noted that the company claimed that the applicant was not hired based on his salary requirements; however, it paid its new (younger) hire more than the amount that supposedly disqualified the older applicant.

In the second lawsuit, the EEOC asserts that a company manager asked an employee repeatedly about retirement as she approached her 65th birthday, including directly asking her, “When are you going to retire,” “Why don’t you retire at 65,” and “What is the reason you are not retiring?” When the employee said she had no plans to retire, the company eliminated her position, supposedly due to economic uncertainty. But less than a month later, it hired a younger worker for the same position.

With regard to the first case, most employers understand that telling an applicant or employee that they’re “too old” or “we want someone younger” is illegal under the ADEA. As the EEOC notes, terms like “more junior,” “too senior” or “overqualified” have been found to be euphemisms for age discrimination. It’s important for employers to focus on the objective job qualifications and equally important that they do not make assumptions about the workers based on their age – or stand-ins for age, like experience level, salary level and the like. If there is a concern that a potential step down might give rise to job dissatisfaction or unrealistic expectations, it would be fair to ask a senior level applicant for a junior role about their understanding of the role and expectations about job responsibilities or salary.

As for the second case, wise businesses should be thinking about the future and engaging in succession planning. So wanting to know when someone might be retiring is obviously of significant interest. But any conversations around this topic must be carefully handled. Certainly, suggesting that someone should retire is a wide-open invitation for an age discrimination claim. And even asking, “When are you going to retire?” can come across the wrong way. A better way to open the discussion might be, “What are your plans in the next 3-5 years?” And then, keep the conversation open and supportive – it is important that the employee does not feel like they are being pushed out. Certainly, do not eliminate their job position and then create a very similar position for which a younger individual is hired – any job elimination and new position creation needs to be demonstrably tied to business needs.

And contrary to the adage, you can, in fact, teach an old dog new tricks. But perhaps do not call them “old.”

Reference: Fiona W. Ong, Shawe Rosenthal LLP, Lexology, Labor & Employment Report Blog, April 6 2023

Note: WorkSaver Systems provides EEOC-compliant physical ability tests which avoids age discrimination for post-offer, pre-placement (new hires), for cause (when an incumbent employee has observed functional problems and/or requests accommodations to perform essential job duties), for job transfers, and for return to work cases following injury and/or illness.

For more information, call WorkSaver Systems at (985) 853-2214 or e-mail Trevor Bardarson, PT, OCS, CBES at

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