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“This pandemic has magnified every existing inequality in our society.”

While that quote from Melinda Gates in The Guardian referred to findings about racism, gender inequality and poverty, HR Branches owner and chief problem solver Reanna Werner thinks it applies to age discrimination as well.

Older people who want to work might have a better chance of getting jobs this summer as employers scramble to fill available positions, Werner said.

But age discrimination in the workplace hasn’t gone away, said Susan Weinstock, AARP vice president for financial resilience programming.

“We did a survey at the end of last year, and we asked people how they were feeling about their job security,” Weinstock said, “and 61 percent of employed workers [age] 40 and up said they’re concerned that they could lose their job in 2021, and they said that age would be a factor.”

The AARP Public Policy Institute’s April 2021 employment data digest, based on figures from the Bureau of Labor Statistics, showed that the unemployment rate for people 55 and older increased from 4.5 percent in March to 5 percent in April. 

The labor force participation rate for older workers rose slightly to 38.3 percent, with 35.6 million 55+ workers employed in April, but people 55 and older represented 53.3 percent of the long-term unemployed in America. The BLS defines long-term unemployment as a term of unemployment that has lasted 27 continuous weeks or more.

Those are national statistics, but figures from the Colorado Civil Rights Division, an agency of the Department of Regulatory Agencies that investigates complaints of discrimination in employment, housing and public accommodations, show that age discrimination remains an issue in the state as well.

According to data compiled by the division’s IT staff, 208 age discrimination cases have been filed to date during the current fiscal year, which started July 1, 2020, and ends June 30, 2021. That number already exceeds the total of 174 cases in fiscal year 2019-2020.

In both years, the most frequently asserted allegations were that the employee was discharged, harassed by a supervisor on the basis of age or subjected to unequal terms and conditions of employment compared to other employees on the basis of age. 

Employers may have legitimate, nondiscriminatory business reasons that enter into their decisions on hiring, promotions and layoffs, said Jennifer McPherson, deputy director of the Colorado Civil Rights Division.

“Because the burden of proof is on the complainant, it can be hard to prove that discrimination occurred,” McPherson said. “The number of cases where we find discrimination occurred is pretty low.”

While many of the current year’s cases are still in process and haven’t closed yet, only five of the cases filed in FY 2019-2020 resulted in a probable cause determination, meaning that evidence supported complainants’ claims of age discrimination.

DELVING INTO DISCRIMINATION

Under the Colorado Anti-discrimination Act, it is illegal to discriminate on the basis of age in employment. That applies to workers 40 and older.

The Civil Rights Division is a neutral, fact-finding agency that does not represent either employers or employees, McPherson said.

“We’re just trying to determine if there has been a violation of the act,” she said.

When a claim is filed, for example, concerning a layoff, the division looks at the criteria an employer used to make layoff decisions. 

“We look not so much at seniority but at previous performance evaluations,” she said. “Whoever had the highest performance evaluation rating, that person is going to be retained.” 

In that case, the employer could claim a legitimate business reason for the layoff.

But absent a legitimate business reason, “if our investigation shows it appears that age discrimination occurred, then we issue a letter of determination that summarizes the evidence and legal analysis,” McPherson said.

The division then schedules a mandatory conciliation conference to try to settle the complaint. If the parties are able to come to an agreement, the division drafts a settlement agreement. If not, the case goes to the Colorado Civil Rights Commission, a seven-member board appointed by the governor and confirmed by the state Senate.

The commission reviews the case and decides whether to set it for hearing before an administrative law judge.

In case of a judgment against an employer, the complainant might be entitled to back pay, or an employer might be asked to undergo training, or to provide additional information about complaints of discrimination and how they were addressed.

The state agency also investigates cases on behalf of the Equal Employment Opportunity Commission, McPherson said. Cases are referred to the EEOC if there are allegations beyond state jurisdiction.

A complainant has the right to take a case to court with an attorney once administrative remedies have been exhausted.

Best practices for employers include having policies in place stating that they do not discriminate based on protected classes that are covered under the law and that they have a process for addressing complaints, she said.

SOFT SKILLS

“People are living longer, and they’re living healthier,” Weinstock said. “And there’s no reason that they can’t work longer.”

But 61 percent of older workers surveyed by AARP have either seen or experienced age discrimination in the workplace.

Before the pandemic, Weinstock said, employers were saying that they wanted to hire older workers, because they possessed soft skills like being calm under pressure, being a problem solver, being a listener and being empathetic. 

“They would say to us, ‘We can train for the hard skills. With older workers, you get those soft skills you get from being in the workforce for a long time,’” she said.

“I think about a worker who’s in their 50s confronted with a problem,” she said. “You may have confronted that problem five times already. So it’s that experience that they bring to the workforce.”

Older workers still face stereotypes and myths that aren’t necessarily true, however. One is that older workers don’t understand technology or that they are not interested in learning new things, Weinstock said.

An AARP survey of older workers ages 40-65 who were in the workforce or recently left the workforce as a result of the pandemic found that two-thirds were interested in learning new skills, especially if requested by a current or prospective employer.

The survey also found that two-thirds of older workers have taken training in the past two years. The most common types were in computer or technology skills; occupational safety; and professional skills, while many have pursued, through continuing education, licensure and certifications.

“We urge employers to look at each individual candidate as a person and what they bring to the workforce, no matter what their age is,” she said. 

Employers often use tracking systems that weed out applicant résumés.

“We need to make sure that those tracking systems are set up to not include any bias,” Weinstock said, “so that everybody who’s applying for a job gets a fair chance at it.”

AARP views diversity in the workplace as very important, and that includes gender, race, ethnicity and sexual identity as well as age.

“If you’re going to build a mass market product, you need a team of people who represent the mass market,” Weinstock said.

She said she has not seen any recent national data on discrimination within workplaces, such as older workers being passed over for promotions, but said employers should be open to hiring older workers.

“Having a multigenerational workforce pays off for employers in many ways,” Weinstock said. “If they have multigenerational employee resource groups, they can set up cross-mentorships so that older workers can learn from younger workers and younger workers can learn from older workers. Those are the things that make a workplace more vibrant and a place where people want to work.”

AARP posts an employer pledge on its website that employers can attest that they affirm the value of older workers and a multigenerational workforce. Employers who sign can get a logo they can display on their own recruiting pages and can post jobs on AARP’s jobs board.

“We have well over 1,000 employers who have signed our pledge,” Weinstock said. “And now that the economy is picking up, we are getting new signers, so it is becoming an interest again.”

BEHAVIORAL INTERVIEWS

COVID-19 has impelled some older workers to look toward retirement and consider whether they even want to go back to work, Werner said. But many older workers saw their pensions and retirement savings decimated during the Great Recession and have no option but to work.

And when they look for work, some older workers may not be able to meet job requirements such as heavy lifting, or they may face unconscious biases.

For qualified older workers, Werner recommends behavioral interviews, which can reveal competence in soft skills.

“So you ask a question like, ‘How

have you navigated a tough customer service issue?’” she said. She suggests following up with at least three more questions “to get to the core of those skills and those behaviors.”

Remote work has been a blessing for many older workers, Werner said. “Because we were forced to go remote, we were able to put on our blinders and not see age or race or gender,” she said. “It did equalize our workforce in many regards. You just saw someone who was willing to jump into the trenches with you and do the hard stuff during a really hard time.”

That vision could continue into the future, along with other lessons the pandemic has taught, Werner said.

“We have had so many holes and gaps in our society that COVID has exposed,” she said. “While it has been extraordinarily painful, it has propelled our society.”

Reporter

Jeanne Davant is a graduate of the University of North Carolina. She worked for daily newspapers in D.C., North Carolina and Colorado, and has taught journalism and creative writing. She joined the Business Journal in 2017.