Regardless of our race, color, sex, national origin, or religion—we all age. And bias against older workers is rampant. According to the AARP, approximately 2/3 of workers 50 plus have seen or experienced age discrimination in the workplace. At the same time, workers age 75 and older are the fastest growing age group in the workforce!
The Problem: The ADEA (Age Discrimination in Employment Act) bars the refusal to hire an applicant because of age. But the courts have split interpreting whether polices that look neutral on their face (“recent graduate”or “digital native”) can be challenged by outside applicants under the ADEA. This has eroded disparate impact challenges for applicants. With nearly 25% of job hunters over the age 50, this loophole needs to be addressed.
Congressional Solution? The Protect Older Job Applicants of 2025 aims to protect older Americans from discrimination in hiring. This bill was introduced last week in Congress with bipartisan support. The bill’s sponsors assert that screening out workers over 40 negatively impacted the economy to the tune of $850 billion in 2018–the last time the study was conducted. If enacted, we would see increased claims and EEOC involvement in the area of hiring.
What To Do: There is never a bad time to examine applicant policies and tools (hello, AI):
- Job Postings and Ads: watch your terms and post broadly– not just social media.
- Interviews: train hiring managers to avoid comments like “fit” and “high-energy”–and to use the same questions and evaluation for all candidates.
- Watch the bias in AI algorithms, which should always have human oversight. Make sure the application process is accessible to people less familiar with technology.
- Set realistic experience requirements with no caps. Set a salary range based on the position.
- Training: regular exposure to ADEA compliance obligations matters. Better training means less exposure. Full stop.
Questions:? We are seasoned really smart attorneys with decades of plenty of workplace law experience. Contact us.