example. “They hear, ‘How old are you going
to be by the time you’re done? How old are you
going to be by the time this investment pays
of?’ ” Blagg says. “This can discourage people”—
which, in turn, can prevent them from pursuing the degrees or certifcations that could land
them a promotion or new job.
Having a robust program to ensure compliance
with the Americans with Disabilities Act is also
critical. “As the workforce continues to age, people will need more assistance,” Blagg says.
And think twice before initiating any kind of
layof that disproportionately afects those with
a long tenure at your company. “In my experience,
termination decisions are the most frequently
challenged decisions in terms of age discrimination, given the impact on the individual,” says
William Milani, vice chair of the board of directors at Epstein Becker Green, a New York City
law frm with 600 employees.
Any time you must oversee a large reduction
in force, carefully review the selection process to
determine whether the proposed terminations
might have a disparate impact on one group. “You
have to examine whether an argument could be
made that there’s statistical signifcance to selection processes that adversely afect older workers,”
For example, if a hiring manager has been
asked to select 20 percent of her team for down-sizing—and only gray-haired heads are on the
chopping block—it’s time to ask questions. Are
there well-documented performance issues, or
could discrimination be rearing its ugly head?
These decisions get complicated when an employer doesn’t appropriately manage its workers.
If someone works at a company for years amid
PUTTING THE BLINDERS ON
unaddressed performance problems, for example,
A lack of early intervention “can easily create a
situation in which an employee says, ‘My feedback
has always been good; I’ve received increases and
bonuses. But now that I’m in my 50s or early 60s,
suddenly my performance is no good. It’s my age,
not performance’ ”—even when real performance
shortfalls exist, Milani says.
The frst step to preventing ageism is to develop
an overarching talent acquisition strategy that
spells out the skills and background needed for
each role. Without one, you risk “falling into a
really big hole of ‘Oh my goodness, we just hired
a bunch of 22-year-olds for these 20 positions
that really need someone with decades of experience,’ ” Nelson says.
It’s also a good idea to create explicit goals for
external recruiters. “I think an initial step can
be that if there are third-party agents involved
in a company’s hiring, those agents don’t make
assumptions about the age of the person” being
sought for the position, says Dana Connell, an
employment attorney at the Chicago ofce of the
law frm Littler Mendelson.
This is important because anyone involved in
recruiting—even a third party—must be aware
of age-related issues, according to a 2001 case,
Mathis v. Phillips Chevrolet. “The court held
that [leaving] managers in ignorance of basic
features of the Age Discrimination in Employment Act is an ‘extraordinary mistake’ for an
employer to make,” Connell says.
‘Sometimes in candidate evaluations, words
like “tired” or “not energetic” appear as a
reason to reject a candidate. It’s a way to
mask age discrimination, and people might
not even be aware that they’re doing it.’
ONEIDA BLAGG, SHRM-CP