Tag: ADEA

Generations in the Workplace

Lawfully Managing Multiple Generations

In today’s workplace, there can be up to four generations working together on a project. While this collaboration is an excellent opportunity for generating new perspectives, conflicts can arise as different personalities clash. Members of the same generation grew up with similar values and experiences and thus tend to perform best under particular management styles. Worker cohorts also tend to share preferences for compensation and work environments, raising implications for employers in structuring their organizations.

Although members of the same generation might generally share values and experiences, employers must be careful not to discriminate or stereotype individuals based on their age. Here we’ll take a look at generational preferences as well as the laws employers must be aware of to avoid potential legal liability.

Working Generations

Sociologists don’t always agree on the birth years establishing the separate generations. However, they and popular culture tend to recognize generations spanning approximately 15-20 years.

Here’s a chart showing the relative portion of the U.S. workforce falling into each of the recognized working generations:

2017 Workplace Generations

Baby Boomers

The members of the Baby Boomer generation are loosely defined as being born anywhere from the mid-1940s to the early 1960s. They are referred to as “baby boomers” due to the increase in birth rate during these years. Baby Boomers share the experiences of the economic boom in the aftermath of WWII, the development of color television, the Cold War, the first walk on the moon, and the Vietnam War. They also lived through several civil rights movements.

In the workplace, Baby Boomers are seen to value company loyalty, strong work ethics, a steady career path, and compensation. Baby boomers are currently retiring at a rate of 100,000 employees per day. However, due to the timing of the last recession, many cannot afford to retire and are instead seeking part-time jobs for an ongoing income stream. With advances in healthcare, the overall U.S. population is growing older, with projections for the population of older Americans to double by 2060. According to the Bureau of Labor Statistics, “As the baby-boom generation ages, the share of workers age 55 and older—a cohort with a low labor force participation rate—is projected to grow to 24.8 percent in 2026. This share is up from 22.4 percent in 2016 and 16.8 percent in 2006.”

Generation X

Generation X (Gen X) follows the Baby Boomer generation and precedes the Millennials. They were born between the mid-1960s and the early 1980s. Generation X members are also sometimes referred to as “baby busters” because of the drop in the fertility rate during these years. Commonly shared experiences include living through the 9/11 terrorist attacks and the widespread adoption of the Internet and cellular phones.

These individuals grew up during a time when women, especially mothers, were increasingly participating in the workforce. This generation (on the whole) values work-life balance more than previous generations. Members of this generation also value stability, personal advancement, and job satisfaction. In the workplace, Generation X members are often considered to be independent, resourceful, and adaptable.

Millennials

Millennials (or Generation Y)/Gen Y) are currently the largest generation active in the American workforce. Members of this group were born between the early 1980s and mid-late 1990s. Millennials often engaged in more precarious work in the aftermath of the Great Recession. This generation doesn’t remember offices without computers and has been characterized as having increased familiarity with technology, communications, and media.

In the workplace, Millennials generally prefer a flat corporate culture, an emphasis on work-life balance, and a socially conscious workplace. Millennials search for environments with meaningful work and opportunities to express creativity. This group benefits the most from immediate feedback. Millennials value free flow of communication and close relationships with supervisors. They are more likely to switch careers than previous generations.

Millennials are the most diverse generation. Due to immigration, this population is increasingly likely to be born outside the United States with a first language other than English. By 2020, Millennials should make up half of the global workforce.

Generation Z

The members of Generation Z (Gen Z) were born from the mid-1990s into the 2010s. They are deeply familiar with technology and social media, having never known a world without mobile phones and digital music and videos. Many came of age during the Great Recession, which has resulted in them being independent and entrepreneurial. Members of this generation typically have a more global perspective and comfort with technology-based interactions. However, they still value person-to-person contact in the workplace. Although Generation Z has not yet gained much work experience, they do tend to have large networks as a result of omnipresent social media. They highly value personal fulfillment in their careers.

What Unites These Generations in the Workplace?

There are several values that employees universally appreciate. In the workplace, individuals of all ages value respect, communication, mentorship opportunities, positive feedback, exchanging ideas, and being able to see the big picture. Employers should keep these values in mind when managing a multigenerational workplace, but might need to adapt their approaches based on individual or subgroup differences

Beware: Age Discrimination

Passed in 1967, the Age Discrimination in Employment Act (ADEA) is a federal law that prohibits age-based discrimination in employment. This law covers employees and job applicants age 40 and older and does not protect younger individuals from preferential treatment toward older workers. The ADEA covers employers with 20 or more employees, employment agencies, government employers, and unions.

Many states also have laws prohibiting discrimination based on age. Some, unlike the ADEA, protect employees even younger than 40 years old. The New York State Human Rights Law is one such law. It protects employees and applicants from discrimination based on numerous protected categories, including age beginning at age 18.

Age discrimination claims can arise out of hiring, firing, promotion, compensation, or any other aspect of employment. This includes harassment.

Examples of age discrimination could include:

  • Assuming only younger employees can handle technology;
  • Pressuring older employees to retire;
  • Not allowing an older employee to pursue new training; or
  • Refusing to hire or promote an otherwise qualified employee based on age.

Although the above examples seem relatively straightforward, sometimes subtle actions can lead to discrimination claims. If employers have any questions, they should consult with an experienced employment lawyer.

 

Special thanks to Erin Killian for her substantial contributions in drafting this article. As of this writing, Erin is a 2L student at the University at Buffalo School of Law and law clerk at Horton Law.

 

EEOC Outreach

EEOC Outreach and Enforcement in FY 2018

On November 9, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) reported on the agency’s activities over the past year. The EEOC oversees most federal employment discrimination laws. This broader release on EEOC outreach and enforcement follows earlier reports addressing only sexual harassment. The EEOC’s fiscal year ended September 30, 2018.

EEOC Outreach Initiatives

EEOC outreach programs reached approximately 398,650 people in FY 2018. These efforts serve to provide information about employment discrimination and worker rights.

“Many people in thousands of workplaces around the country depend every day on the work of the EEOC. I am proud to say that the EEOC met the increased demand for our expertise, for information and training, and for strong enforcement to combat all forms of discrimination, including sexual harassment,” said Victoria A. Lipnic, Acting Chair.

On the subject of workplace harassment, the EEOC conducted over 300 “Respectful Workplaces” training sessions. More than 9,800 employees and supervisors participated in these trainings.

These initiatives may have contributed to increased administrative charges against employers last year. For example, the EEOC previously reported a 13.6% increase in work-related sexual harassment charges in FY 2018.

During this fiscal year, the EEOC received more than 554,000 calls and emails. This includes over 200,000 inquiries regarding possible discrimination claims. This represents a 30% increase in such inquiries, which led to 40,000 intake interviews.

EEOC Enforcement Efforts

The EEOC reports that overall for 2018 it resolved 90,558 charges and obtained $505 million for employees claiming discrimination. The majority of these funds ($354 million) came as a result of mediation, conciliation, and settlements. Only $53.5 million resulted from litigation. (The remaining $98.6 million came through special hearing and appeals procedures for federal government employees.)

Although very few EEOC charges result in litigation, the agency filed 199 lawsuits alleging employment discrimination in FY 2018.

Looking ahead, the EEOC will release its 2018 Performance and Accountability Report on November 15, 2018. It will also publish its comprehensive enforcement statistics for FY 2018 early next year.

For more on the EEOC’s FY 2018 sexual harassment statistics, click here.

For information on FY 2017 EEOC statistics, click here.

Message to Employers

The EEOC has a prominent role in enforcing several federal anti-discrimination laws. These include Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Genetic Information Non-Discrimination Act.

These laws collectively prohibit discrimination in the workplace based on race, color, sex, national origin, religion, disability, age, and genetic information. Despite the EEOC’s recent emphasis on sexual harassment cases, it is not ignoring the other categories.

Employers should always remain vigilant to prevent and redress all forms of employment discrimination, including harassment and other tangible employment actions. As a first step, every business should have a comprehensive anti-harassment policy and effective complaint procedures. These measures can help prevent legal liability.

EEOC outreach on employment discrimination will continue in the next fiscal year and beyond. Thus, the FY 2018 statistics are only a reminder that the anti-discrimination laws remain in effect. They are not the end of the story.

 

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Employment Discrimination Through Facebook Ads

Employment Discrimination Through Facebook Ads

On December 20, 2017, the Communications Workers of America filed a federal lawsuit in California claiming that various employers had discriminated against job applicants based on age. The named defendant employers are T-Mobile, Amazon, Cox Communications, and Cox Media Group. CWA contends these companies (among others) unlawfully targeted candidates through Facebook ads. Several individuals joined CWA as plaintiffs in this proposed class action.

In addition to the four named defendants, the lawsuit purports to also “bring this action . . . against a Defendant Class of hundreds of major American employers and employment agencies that, upon information and belief, routinely exclude older workers from receiving their employment and recruiting ads on Facebook, and thus deny older workers job opportunities.” The lawsuit indicates that the plaintiffs intend to identify additional defendants “through early discovery in this action or a pre-discovery exchange of information with Facebook.”

Prefer a free webinar? Try Legal Risks of Social Media in Hiring.

Plaintiffs’ Allegations

These statements from the lawsuit reflect the theory behind the plaintiffs’ claims:

  • “These companies eliminate older workers from receiving job ads by specifically targeting their employment ads to younger workers via Facebook’s ad platform.”
  • “Upon information and belief, nationwide, large and small employers alike apparently believe that it is appropriate and desirable to exclude American workers from job opportunities solely based on their age.”
  • “When selecting the population of Facebook users who will receive employment ads, employers and employment agencies routinely focus their ads on prospective applicants who are in age bands that exclude many workers who are 40-years-old or greater, e.g., workers who are ‘ages 18 to 38,’ ‘ages 22 to 45,’ or ‘ages 21 to 55,’ thereby preventing older workers from receiving advertising and recruitment for job opportunities, upon information and belief.”
  • “Upon information and belief, Facebook does not stop an employer or employment agency from selecting a younger age range (such as ages 18 to 40) that discriminates against older workers in setting the population that will receive an employment ad via Facebook.”
  • “Facebook provides advertisers the ability to send employment ads to individuals who fall into the following categories related to a younger age group or categories that ordinarily would be a proxy for younger workers: Young & hip – a group of millions of people “whose activities strongly suggest they are young and hip” (according to Facebook); and Millennials – a group of millions of people “who have expressed an interest in or like pages related to Millennials” (according to Facebook).”

Potential Defendants

The lawsuit describes as defendants:

All employers or employment agencies who annually employ at least 2,500 employees or annually refer for employment at least 2,500 employees, and have purchased or sent employment-related Facebook advertisements that placed an upper age limit on the population of Facebook users that was eligible to receive an advertisement, at any time from the earliest date actionable under the limitations period applicable to the given claim, until the date of judgment in this action.

A Federal Complaint for the Facebook Age

The complaint document itself demonstrates a modern approach to federal court litigation. It includes screenshots of some of the contested Facebook ads pasted right into the standard pleading paragraphs.

One such screenshot is a “Why am I seeing this ad?” window. It indicates, “There may be other reasons you’re seeing this ad, including that T-Mobile Careers wants to reach people ages 18 to 38 who live or were recently in the United States.

The lawsuit does not specifically name Facebook as a defendant. However, it uses Facebook’s own job posting as evidence of the capability to target job candidates by age. (At least the Facebook example shown suggests a larger age range, from 21 to 55!)

Age Discrimination

For procedural reasons, the CWA lawsuit only asserts claims under various state laws that prohibit age discrimination. But the plaintiffs reference the federal Age Discrimination in Employment Act in summarizing the legal/policy basis for their claims.

The ADEA prohibits employers with 20+ employees from discriminating based on age among employees 40 years old or older. It includes this provision specific to job advertisements:

Printing or publication of notice or advertisement indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

Not Just Age Discrimination

Age isn’t the only characteristic upon which applicants have alleged employment discrimination through Facebook ads. On November 3, 2016, a similar class action lawsuit was filed in the same California federal court. Facebook is the only named defendant in that case, which alleged both employment- and housing-related discrimination based on race, color, religion, sex, familial status, and national origin.

The employment discrimination claims allege violation of Title VII of the Civil Rights Act of 1964. Besides Facebook, this lawsuit uses “Doe Defendants 1 to 9,999” to refer to purported “entities that have used Facebook’s Ad Platform to illegally discriminate . . . with advertisements for employment or housing.”

Like the ADEA, Title VII has a specific provision regarding job advertisements:

Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception

It shall be an unlawful employment practice for an employer . . . to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer . . .  indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

Facebook and the plaintiffs are currently mediating this lawsuit.

Avoiding Employment Discrimination Through Facebook Ads

We don’t have court decisions on these claims yet. Nonetheless, most employers should probably avoid limiting publication of their online job postings to certain age groups. Targeting individuals 18+ may be acceptable for many jobs. But there would be few situations where an upper age limit would be a risk-free approach.

Likewise, limiting ads based on gender, race, religion, etc., is also a risky strategy. Perhaps a compelling (and potentially non-discriminatory) business case can be made. But applicants may still follow the lead of these cases and challenge online recruiting practices that appear to exclude them.

As the litigation develops in these and other cases, perhaps some additional leeway may emerge as reasonable. For example, is it okay to run separate ads for different age groups, as long as no-one is excluded? Would the employer need to spend an equal amount on all age groups? Is that even possible to guarantee?

We may also see Facebook change its approach to ad targeting because of the discrimination claims. That could have implications beyond recruiting, potentially affecting all forms of online advertising.

Learn more about employment discrimination through Facebook Ads and other recruiting issues:

Check out my webinar on Legal Risks of Social Media in Hiring!