Emerging Discriminatory Practices

Background

AARP is increasingly concerned about employer practices that may appear neutral on their face but can have an adverse impact on older workers.

For instance, the recent recession exposed a disturbing and increasingly blatant practice: discrimination against the unemployed. Employers and staffing agencies advertise that only the currently employed are eligible to apply for job openings, and the agencies consider only applicants who already have a job. This practice is not only arbitrary and irrational in its disregard for actual qualifications, but it also may violate civil rights laws as 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. AARP is particularly concerned about the effect of credit screenings on older workers, due to recent sharp increases in bankruptcy filings among Americans 55 and older, much longer spells of unemployment for older workers, and the greater risk of medical expenses and medical debt that comes with age. The EEOC has raised questions about the use of credit reports, especially during sustained periods of high unemployment, but it has focused on the racial and ethnic impact of this practice. However, use of credit information in hiring can also have an adverse impact based on age, disability, and sex. (For that matter, 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.).

AARP is concerned that some employers may use information about employee medical costs in selecting employees for termination while ostensibly basing such decisions on other grounds, such as alleged performance deficiencies. Such practices tend to fall more harshly on older employees with their own disabilities or who have a spouse (or other family members) with disabilities covered by the employee’s employer-based health insurance. This can be especially problematic in the case of self-insured employers, which have greater incentives to save costs by terminating older workers with serious medical conditions and/or disabilities.

Finally, as the population and workforce ages, the numbers of older workers with caregiving responsibility for older loved ones will increase. Employment discrimination due to eldercare responsibilities is a growing issue and a particular challenge for older workers. 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 ADA; it has not addressed possible implications under the ADEA.

Emerging Discriminatory Practices: Policy

Use of credit reports by employers

Because of the likely disparate impact of credit screening on many protected groups, the EEOC should issue regulations or guidance limiting the use of credit information by employers to positions for which financial responsibility is closely related to job qualifications and duties.

Congress and state legislatures should consider legislation significantly limiting the use of credit information by employers.

Family caregiver discrimination

The 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, which should include requirements to provide reasonable accommodations to family caregivers.