Discriminatory employment practices—including discrimination against the unemployed, people with low credit scores, people with family caregiving responsibilities, and people with disabilities—often have a disparate adverse impact on older workers.
Discrimination against the unemployed became more prominent during, and after, the Great Recession. Some employers and staffing agencies have advertised that only individuals who currently employed are eligible to apply for job openings. This practice is not only arbitrary and irrational in its disregard for actual qualifications, but it also may violate civil rights laws. It may have a disparate impact on certain protected groups such as older workers and workers with disabilities who, once unemployed, are much more likely than others to experience long spells of unemployment.
Some employers now routinely use credit reports to screen job applicants and make promotion decisions, even though there is no proven correlation between credit history and job performance or honesty. Credit checks can affect workers of all ages with a thin or bad credit history. Credit screenings can have a greater effect on older workers because they often experience longer spells of unemployment and are at greater risk of medical expenses and medical debt. For that matter, the use of credit screening can also have an adverse and unfair impact on others not protected by civil rights laws, such as students with thin credit histories and student loan debt. The Equal Employment Opportunity Commission (EEOC) has raised questions about the use of credit reports, but it has focused on the racial and ethnic impact of this practice. The use of credit information in hiring can also have an adverse effect based on age, disability, and sex.
Employment discrimination due to eldercare responsibilities is another issue that poses a challenge for older workers. As the population and workforce ages, the numbers of older workers with caregiving responsibilities for older loved ones will increase. This discrimination can take the form of denial of equal employment opportunities due to caregiving responsibilities, or retaliation in response to the need for leave or other accommodations to manage both work and caregiving. The EEOC has issued excellent guidance and has identified best practices regarding family responsibilities discrimination. However, that guidance has been limited to addressing its implications under Title VII and the Americans with Disabilities Act; it has not addressed possible implications under the Age Discrimination in Employment Act.
Some employers require, as a condition of employment, that employees use a mandatory and binding arbitration procedure instead of having access to the courts to address any discrimination disputes that may arise. Such pre-dispute arbitration agreements threaten the protections and enforcement mechanisms of the Age Discrimination in Employment Act (ADEA) and other federal civil rights laws since they deny employees access to the courts.
Another essential element in enforcing employment discrimination protections for older workers is the Americans with Disabilities Act (ADA). Nearly two-thirds of all workers with a condition impairing their ability to work are 45 and older which means they are covered by both the ADEA and the ADA. The aging of the American workforce is likely to increase the number and proportion of employees with disabilities and could also increase the number of cases brought for disability discrimination. Several Supreme Court decisions have weakened protections against workplace discrimination by narrowly construing what constitutes a “substantial limitation” in “major life activities,” two standards that trigger legal protection from discrimination for people with impairments.
OTHER FORMS OF DISCRIMINATION AFFECTING OLDER WORKERS: Policy
Policymakers should use regulatory and legislative measures to prohibit discrimination against the following groups of workers:
- job-seekers who are or have been unemployed;
- individuals with poor credit scores, unless financial responsibility is closely related to job qualifications and duties;
- those with family caregiving responsibilities; and
- people with disabilities.
The Equal Employment Opportunity Commission (EEOC) should expand its guidance on family responsibilities discrimination to include age as a protected basis on which it may occur.
State and local governments should prohibit discrimination against workers with caregiving responsibilities. Regulations should include requirements to provide reasonable accommodations to family caregivers.
The EEOC should make it a priority to identify and pursue appropriate opportunities to bring litigation to enforce the Americans with Disabilities Act Amendments Act of 2008 and EEOC’s regulations implementing that law. The EEOC should also make it a priority to challenge systemic disability-based discrimination.
The imposition of pre-dispute mandatory and binding arbitration of claims filed under the Age Discrimination in Employment Act and other federal fair employment laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, should be prohibited.