Other Forms of Discrimination Affecting Older Workers

Discriminatory employment practices can take a variety of forms. They can include discrimination against groups such as the unemployed, people with low credit scores, people with family caregiving responsibilities, and people with disabilities. These practices often have a disparate adverse impact on older workers. 

Discrimination against the unemployed became more prominent during and after the Great Recession of 2007–2009. Some employers and staffing agencies advertised that only currently employed individuals could apply for job openings. Practices such as this are arbitrary and irrational in their disregard for actual qualifications. They also may violate civil rights laws and have a disparate impact on certain protected groups, such as older workers and workers with disabilities. Once unemployed, these workers are much more likely than others to experience long spells of unemployment. Similar patterns emerged during the COVID-19 pandemic-related economic downturn of 2020. 

Some employers routinely use credit reports to screen job applicants and make promotion decisions. However, 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. 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. This can include students with thin credit histories and student loan debt. The Equal Employment Opportunity Commission (EEOC) has raised questions about the use of credit reports in this way. Still, 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 also poses a challenge for older workers. As the population and workforce age, the number 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 it could be retaliation in response to the need for leave or other accommodations to manage both work and caregiving. The EEOC has issued excellent guidance and identified best practices regarding discrimination due to family responsibilities. 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 that employees use a mandatory and binding arbitration procedure for disputes. The requirement is a condition of employment and means that employees will not have 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. 

The Americans with Disabilities Act (ADA) is another essential element in enforcing employment discrimination protections for older workers. Nearly two-thirds of all workers with a condition impairing their ability to work are age 45 and older. That 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. It could also increase the number of cases brought for disability discrimination. Several Supreme Court decisions have weakened protections against workplace discrimination. They have done this by narrowly construing what constitutes a “substantial limitation” in “major life activities.” These two standards trigger legal protection from discrimination for people with impairments.