Beating Back Age Discrimination in Ohio's Workplaces
In an evolving workforce that is increasingly diverse in terms of race, gender, and generation, one form of discrimination has persisted quietly but tenaciously: age discrimination. Many older workers often find themselves facing barriers, not because of their abilities or experiences, but simply because of preconceived notions about age.
Ohio's age discrimiantion laws combat stereotypical thinking about older individuals. Common stereotypes behind age based thinking include:
- Technological Ineptitude: An assumption that a worker in their 60s wouldn't be familiar with the latest software or social media platforms, thereby sidelining them from digital projects.
- Inflexibility: A belief that older employees are resistant to new ideas or methodologies, thus excluding them from innovative projects or task forces.
- Cognitive Decline: The assumption that older workers might not be as sharp or quick in their decision-making, leading to their exclusion from fast-paced projects or leadership roles.
- Physical Limitations: Presuming that an older worker may not be as energetic or might have health issues, hence not considering them for roles that require travel or extended hours.
- Impending Retirement: A belief that an older worker might be leaving the workforce soon, making them a less attractive choice for long-term projects or promotions.
Such stereotypes not only limit the potential of older workers but also rob organizations of valuable experience and expertise. It is against this backdrop that legal frameworks such as the Age Discrimination in Employment Act (ADEA) and Ohio's anti-discrimination statute have been enacted.
The Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act (ADEA), enacted in 1967, prohibits employers from discriminating against employees and job applicants who are 40 years of age or older. This protection extends to hiring, firing, promotions, layoffs, compensation, benefits, job assignments, and training. It aims to ensure that age-based prejudices do not overshadow the skills, experiences, and proficiencies of older workers. Employers covered by the ADEA include local governments regardless of size, businesses with 20 or more employees, labor organizations, employment agencies, and federal government agencies. The State of Ohio, however, is immune from liability under the ADEA.
Age Discrimination under Ohio Law
Ohio's anti-discrimination statute, found in Revised Code Chapter 4112, closely mirrors the ADEA but covers employers with four (4) or more employees, expanding the protections to workers at smaller businesses. Also, unlike under the ADEA, employees of the State of Ohio are covered by Chapter 4112.
Defenses to Age Discrimination
Reasonable Factors Other Than Age (RFOA). In some cases, employers can justify actions that seem age-discriminatory if they can demonstrate that the action was based on a RFOA. For instance, if an older worker’s performance is affected due to diminished agility, and the job requires agility, the employer might defend their decision citing agility, not age, as the reason.
Bona Fide Occupational Qualification (BFOQ). Though rarely invoked, the BFOQ defense permits employers to make age-based employment decisions if age is a BFOQ reasonably necessary for the normal operations of the business. For example, hiring a younger actor to play a young character in a film could be seen as a BFOQ.
The Older Workers Benefit Protection Act (OWBPA)
Supplementing the ADEA, the OWBPA of 1990 protects older workers from discrimination concerning benefits. Typically, the OWBPA shows up in severance agreements for employees over the age of 40. In this context, the OWPBA requires that for an employee to validly release their potential age discrimination claims, the severance agreement must contain notices of the following rights:
- the employee may consult with legal counsel to review the severance agreement;
- the employee has 21 days to review and consider the severance agreement; and,
- even after the employee signs, they shall have 7 days to change their mind and revoke their acceptance of the severance agreement.
When an employer implements a reduction in force (RIF), the OWBPA mandates that it provide the employee with 45 days (instead of 21) to review the severance agreement, and that it disclose age-based demographic data when seeking waivers in group layoffs. The demographic information must include a list of all job titles and ages for those considered for layoff, along with those selected. Names, however, are not required to be included.
How to Spot Age Discrimination
In addition to noticing general disparities in treatment between employees over age 40 and those who are significantly younger (typically an age difference of 10 years or more), age discrimination can be found in job postings, use of information provided in employment applications, and comments made by supervisors at work.
Examples include job postings that seek those of a certain age (recent high-school or college graduates) or otherwise signal that only younger workers are desired. Also, comments made by supervisors about an employee’s age or when they plan to retire could be a warning sign that age discrimination is afoot.
While it is not per se unlawful for employers to ask for age-identifying information in a job application (e.g., date of birth, date of high-school or college graduation, etc.), it is generally a practice that is not recommended. Where an employer does not know an applicant’s age, it is much more difficult to accuse them of age discrimination in non-selection.
Age should not be a reason for denying opportunities to productive workers. Employers, must recognize that age discrimination is not only unjust but also counterproductive. As we've seen, laws such as the ADEA and Ohio's anti-discrimination statute aim to protect older workers. For individuals combating age discrimination, the fight is not only about protecting their job, but affirming their worth, value, and contributions, irrespective of the year they born.