Silicon Valley is notoriously youthful: the overall median age of the U.S. workforce is 42.4. At Google, as of 2014, it was 29. The CEOs of Facebook and Uber are under the age of 40; Snapchat’s co-founder and CEO is 26. Clearly, gray hair and advanced degrees are no longer prerequisites to success, but companies can run into trouble when they value youth at the expense of older workers.
The federal Age Discrimination in Employment Act (ADEA) and California’s Fair Employment and Housing Act (FEHA) protect workers over the age of 40 from discrimination based on their age. Discrimination could include a refusal to hire or promote older workers; denying benefits, such as training or preferred shifts, to them; or targeting them first when a company goes through layoffs.
Age discrimination cases brought before the Equal Employment Opportunity Commission (EEOC) rose nearly 28 percent since 1997. Last year, age discrimination cases represented 22.5 percent of all cases filed with the EEOC.
In addition, the EEOC’s recent Strategic Enforcement Plan states that one of the EEOC’s enforcement priorities for 2017-2021 includes focusing on the lack of diversity in the tech industry.
“Age discrimination is always a hot topic, but California is of particular interest because of the youthful atmosphere at our state’s many tech companies,” said Erika Frank, vice president of legal affairs and general counsel for CalChamber. “Employers can certainly pursue a fun, energetic work environment but need to be careful that they’re not discriminating against older applicants and employees in the process.”
Careful drafting of job postings, conducting of interviews, and management of workplace environments will help businesses ensure that they do not, even unconsciously, discriminate against older workers.
The job posting is often the first point of contact between a job applicant and an employer. Language or images in a posting that indicate a preference for younger workers could deter older candidates from applying, potentially leading to a claim of age discrimination.
Avoiding the use of words such as “young” or “youthful” is an obvious start but more subtle factors can also imply a preference for youth. For example, some companies advertise jobs as “ideal for new college graduates.” Others will state that they will consider “recent” graduates, and may even identify the specific graduation years they will accept.
An employer might argue that such language is age-neutral, since an older worker could have recently obtained a college degree. But this approach is risky. Employers can avoid this problem by instead describing positions as “entry level” or “no experience required.”
Images in a job posting can similarly serve as a subtle deterrent to older workers. If the employees or models featured in a particular position are consistently young, the unwritten implication is that a qualified applicant must be young as well.
“If you decide to use employees or models in a job posting, be sure that they represent different types of people,” said Frank. “Try to balance men and women, and include workers of various races, ages and abilities.”
Very few positions require an applicant to fall within a certain age range. Employees must be over the age of 21 for certain jobs involving the sale of alcohol, and airline pilots have a mandatory retirement age. For other jobs, employers should not inquire about an applicant’s age, or ask any questions that might lead an applicant to disclose his or her age.
“As with job postings, avoid asking applicants about the year they graduated from high school or college,” said Frank. “You can ask if they have a college or graduate degree if it is relevant to the job, but stay away from specific dates.”
Employers could also potentially dissuade older workers during an interview if they emphasize the importance of a new employee “fitting into” company culture. If the candidate sees that every employee in the office is under 30 years old, the implication is that successful candidates must also be in their 20s.
“You can describe the specific requirements of a position, such as the necessary work hours, travel and educational qualifications,” said Frank. “But be careful insisting on a cultural fit if your culture is very youthful.”
The term “startup” conjures images of 20-somethings wearing hoodies and riding hoverboards around their open-floorplan desks. Popular team-building activities could include paintball, go-karting and pub crawls — perhaps all during the same evening.
“There’s absolutely nothing wrong with fostering a fun, energetic culture,” said Frank. “But avoid an environment that might consistently exclude a discrete group of workers.”
Managers may also consider offering a variety of team-building options for different ages and ability levels.
As with all forms of discrimination, employers can reduce the risk of lawsuits by drafting anti-discrimination policies and ensuring that all employees receive training on them. Training is especially important for young managers, who may find themselves supervising direct reports who are decades older than them.
“Managers need to be sensitive to the challenges older workers face, particularly in an industry, such as tech, that so highly values youth,” said Frank. “Fifty-year-old employees can feel like outsiders when they are surrounded by Millenials. Supervisors need to ensure that the work atmosphere doesn’t reinforce that perception.”