Episode 30: Ageism in the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice president and General Counsel, and with me back on the podcast again is Jennifer Shaw of the Shah Law Group. Welcome, Jennifer.

Thank you, Erica. I'm thrilled to be here, as usual.

It's always great to have you back. Today we're going to talk about a very interesting topic. And I think it's interesting because when our listeners start to hear what, what types of things emerge from this topic, they're gonna find, or hopefully find that it's interesting as well. And that is ageism in the workplace.

It's a big deal these days, and I think it's interesting on a couple of levels. First, the stereotypes that we have about, quote, older workers. By the way, you and I both meet that category, so we probably don't wanna talk about that too much more. But also this idea of getting back to the root of equal employment opportunity. What are people's job skills? What are their abilities? What are they doing? Right. That's really what our decision should, rather than looking at somebody's protected categories, such as age, to try to decide how someone should be acting or whether we should be, quote, protecting, you know, the fragile worker who just turned 70 years of age. So it raises a lot of fascinating questions, I think, for the workplace.

And what I think that is so fascinating about this topic is, on the one hand, you can ask, when are you too old? But the other question could be, are they too young? And so on both spectrums, we can get the, well, you know, Suzy, she's getting up there in age. You know, let's not ruffle her feathers too much. But we could have Bobby, who. Well, you know, those millennials. That's right. I mean, come on, take it easy on them, as opposed to just looking at the worker in a holistic way and saying, here's what we need for you to perform in the job.

Right? Here are the expectations, and this is what we need you to be doing. So when you think about the law, we have the Age Discrimination and Employment Act. We have. We have California's Fair Employment and Housing act, both of which protect individuals who are 40 years of age or older. By the way, it drives me crazy when people say, you know, under 40, you're protected. It's 40 and older, right? So it's not, you know, 39 and a half. You gotta be 40 years of age or older. What's interesting is in 1967, when the ADEA, the Age Discrimination and Employment act, passed it sort of Made sense because a lot of people retired at 60. Many of them had a defined benefit plan for retirement that required 20 years of service. So if you fired someone at 45, they were going to be hard pressed to find a, quote, good job that would allow them to work the 20 years and retire at 60. So I think Congress, if you look at the background and the legislative history of the law, they were really moved by this idea that, okay, someone's got to be in this job for 20 years. If you back off of 60, you get 40, let's protect 40. These days, of course, it's not unusual at all to have a 70 year old in the workforce doing a great job. I might add, it's also not unusual to find a 21 year old being discriminated against because somebody has just the perception that if you're 21, you couldn't possibly be mature or you couldn't possibly be responsible. So we've got stereotypes on both sides.

We do. And I think that's one of the things that I think is challenging for employers in this day and age is you have a number of generations in the workplace. Each generation marked by their own experience, experiences, their own work ethic, what they value, what they don't. You know, you might have that older individual who wants to get that work done, whether it's on the clock or off the clock, they don't care. And you might have a different generation, or you might have another individual in that same generation who might feel a little bit differently. So there are a lot of things that employers have to be aware of when they are looking at their current workforce and the employees that you have, as well as when they're recruiting.

That's absolutely right. And one of the things that I always try to tell our clients is let's not make this more complicated than it needs to be. Just look at skills, qualifications and abilities. Are they doing what you need them to do? If they aren't, then we have to take steps to correct that. I don't care how old they are, what color they are, whether or not they go to church, none of that matters. Right. And it's so easy to be swayed by almost trying to do something kind. So, for example, well, we have Mary Beth and she just turned 65. We know she's slowing down, let's reduce her productivity standard, which feels like a really nice thing to be doing. You know, we don't want her to leave us. She's been a great part of our team. Let's make it a little easier for her. But of course, we just created a slew of issues, right? First of all, what if her bonuses are based on productivity now we just made it more difficult for her to get a bonus. What about the 42 year old who has the same productivity expectation for. But she's gonna be held to a different standard now. So even sometimes when we try to do something nice, we actually create potential liability. So we sort of go back to those ABCs of managing and hiring and corrective action, Right? It's just the facts. Don't be swayed by how old or how young someone is or your own bias. And of course, we've all got it conscious or unconscious about what an older worker can or should be doing or what a younger worker can or should be doing.

So, Jennifer, what about though, those employers that, yeah, they get it, they hear us talking about all these things, but they still want to find a way to determine how old somebody might be or when somebody might have their expected retirement date. And we'll find these little backdoor ways to get the information. So, for example, you know, a common question that we get is, okay, we get it, that we shouldn't be asking the applicant how old they are, but can we ask them what year they graduated?

Right. Which is, hello, basic math. We can probably much figure that out if we go back to when their high school graduation was, right? Yes. So this is not really an effective answer, but it's the bloody truth, right? Just stop it. Don't try to figure out how old somebody is. Don't try to figure out anything about them other than whether they can do the job that you're hiring them to do. I get the temptation. And like I said, it's often fueled by good motives, by someone who wants to do the right thing or. But honestly, we have to stop it. So I was just having a call outside the studio with a client who said, well, I want to fire this person, but she's protected. She's 52. I said, okay, well, forget about being protected. We're all protected. By the way, we've all got at least 12 protected categories, five more depending on what's going on. The real question, is she doing the job? No, she's not doing the job. Well, why don't you fire her? You've already given her all this corrective action. Well, Jennifer, we don't want to be sued for age discrimination. Okay, but look, if you get up in the morning, you can be sued for something. You're gonna create a problem by not being consistent. So sometimes I think by trying to bend over to do the very best we can, you know, we're like, really killing ourselves to try to create equality and the best environment we can. Sometimes we create the problem by focusing on the wrong things. Now, having said that, you have a, quote, older employee who comes to you and says, I've got a medical issue. Great. You treat that older employee like you treat anybody else, right? I need medical documentation. Is he or she eligible for FMLA or cfra? Do we have an accommodation issue? We don't put on the kid gloves because that's when you really create a legal issue. You start doing something, quote, nice for someone, pretty soon you've created an entitlement to an accommodation.

So I'm gonna throw this one out to you, and I know you're gonna be able to catch it and throw it right back at me. But what about those situations, whether it's old or young, where they're lack of experience or their inability to grasp certain things as quickly as others does affect their performance as the employer, should we be looking for ways to help them? So the first thing that comes to mind is, lord knows my kids know how to use my iPhone and my iPad way better than I do. And if I'm struggling and I need to use this for work, what should my employer be doing to help me get to that point? As opposed to saying, you know what? You're not performing very well because you don't know how to use your technology.

Totally agree with you. Here's the place where stereotypes get really interesting, right? Because we always think it's the older worker who can't do that. Well, I just had a kid who was homeschooled whose mother never had him use technology. So this kid's 19 years old, he shows up and he's like, I don't even know what you're talking about. Like Microsoft Word, like Outlook. What is that? He literally had no idea. So obviously we're gonna train him, right? And it's what we should do for everybody. But it's funny because we tend to think, okay, the older person, quote, won't be able to do the it. The younger person's going to want to party all day and will come in late. The truth is, those are all stereotypes. I believe firmly that if you spend time advertising a job, interviewing someone and hiring them, you don't want to throw them away unless you absolutely have to. So you should really be thinking, for every position, what training should we be offering? How are we going to gauge performance? How are we going to make sure that we are able to tell if someone is doing the job and then be consistent in that process. But I think we've got to spend the time up front. These stereotypes, these biases are really a shortcut that we shouldn't be taking.

I agree. Now, here's another question that comes to mind. Setting aside the biases and the employers that might be trying to find a backdoor around some of these things that we're talking about. Part of business planning is succession planning, and part of business planning and including aging workforce or just employees in general is retirement. You know, 401. We're talking a lot about saving for your retirement. How do you get around talking about those issues without age coming into play? And, you know, employers that might be listening might go, oh, my God, we can't even. We can't even plan for succession planning because then we're going to be revealing or talking about so and so's age and so and so's, you know, limitations as they get older.

Such a great question. And here's where it starts. From my perspective, we should be doing succession planning with whether the person in the position is 21 or 81, because people don't stay in jobs the way they used to. Succession planning used to be a problem because obviously what we're planning for is the older worker to retire. These days, we have to think about the younger worker who's leaving. Right. We had an attorney who left one time, and I said, oh, my gosh, I thought you were so happy. She says, I was, but after four years, I thought it was good to change.

Change why?

You're happy, I'm happy. Why are we getting a divorce? Right. What's going on?

Right.

So part of the problem, I think, when we look at succession planning is we always assume we're doing succession planning because somebody might retire. We should be doing succession planning, cross training, making sure we have folks who can do these duties regardless of age, because anybody could leave. And so it's really not succession planning based on age at all. So companies we've worked with have made horrible mistakes in this, this way. They've said, all right, we're going to look at any position where the incumbent is 50 years of age or older, and we'll do succession planning. Okay, well, can you spell age discrimination? We've got a problem. But if you look at all of your positions, your key positions, and say, hey, we've got to have a plan for every one of these, then it's not about age discrimination. And I wholly encourage all These employers, big and small, go out. You should do succession planning. But who cares how old the person is in the position? You want to have a plan if that person leaves because they get hit by a truck, because they have a baby or because they retire.

Jennifer, one other thing that I wanted to touch upon before we close today is what about mandatory retirement?

Well, there are certain industries where you can have mandatory retirement. For example, pilots who are licensed by the FAA and they fly for commercial airlines, there's a mandatory retirement for them. And there's only going to be a legal mandatory retirement when you actually have a health and safety issue. So, for example, certain correctional employers like chp, California Highway Patrol, you can't be over a certain age to apply for a job because their rubric is, look, we're going to spend all this time and money and resources training you. We don't want you to retire in two years. Right. Most mandatory retirement isn't really called mandatory retirement. Right. It's a situation where we say, okay, the partners in the law firm have agreed that that when a partner reaches age 65, they're going to step aside to make room for the new partners coming up. It's technically not mandatory retirement. That has been something that's been negotiated by the employer and by the employee. But certainly actual mandatory retirement is going to be something that is very limited. And it's mostly going to be a government job or something that is really managed by the government, like the faa. For example, when you have a pilot, you're looking at this idea of public safety. For the most part, mandatory retirement programs are illegal.

Jennifer, thanks again for joining us on the podcast today. As always, some very interesting issues that we get a chance to talk about.

It is always my pleasure.

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