1 Kind of Workplace Discrimination Is Still Legal -- and Everyone Is at Risk

Americans in general are living longer, which is good news almost any way you slice it. But many of us intend to spend some of those added years working, and that's leading to an array of unfortunate issues.

In this episode of Motley Fool Answers podcast, co-hosts Alison Southwick and Robert Brokamp are joined by Susan Weinstock, the AARP's vice president of financial resilience programming, to talk about what the growing cohort of older workers means for U.S. business and society. In this segment, they focus on the widespread challenges of age discrimination, how technology can make it worse in unexpected ways, how early in a career age discrimination can manifest, and more.

To catch full episodes of all The Motley Fool's free podcasts, check out our podcast center. A full transcript follows the video.

This video was recorded on June 18, 2019.

Robert Brokamp: On the podcast, we've talked before about the value of delaying retirement, especially if you're financially on the cusp of not having quite enough money; just delaying it by a few years is very beneficial. Higher Social Security benefits. More years contributing to your 401(k). Fewer years taking money from your 401(k). That's all great.

But there are some challenges to working later in life, correct? For example, there's longer unemployment trends for some people who are older.

Susan Weinstock: Right. If you lose your job, it will take you double the time to find a new job [than] a younger worker. So that's a disturbing trend. It's also disturbing because if you think about the workforce, there are more jobs available now than there are people in this country to fill them. And so we spend a lot of time talking to employers about the value of older workers, because in some cases this seems to be the last bastion of discrimination.

Like it's OK to say negative comments about old people; things you would never say about other people with regard to other attributes. But being old -- it's OK to make jokes. So we continue to say, "These are valuable workers." In fact, in many cases, it's their institutional knowledge that's walking out the door. What are you doing to ensure that two years from now, all those people have left and then somebody says, "Hey, let's try doing this," and nobody realizes they tried it three years ago and it didn't work, and so now you're going to spend all this time and money because the institutional knowledge is gone.

It's really important to retain those older workers. Think about how you want to structure that job. It's sort of like curb cuts. Curb cuts were made for really disabled people; but they're great for people with bikes. They're great for people with strollers. They're great for people with scooters. You name it, they're great!

It's the same idea with workplace flexibility. I mean, new moms and new dads love workplace flexibility. Well, guess what? So do older workers, too. So employers can think about how they structure their workforce so they can give that flexibility to their workers and they can participate as they will, but they also bring so much to the workforce.

Brokamp: I read a survey recently. It said that a large percentage of people would love to do some sort of a phased retirement -- going from full-time to part-time and then retiring...

Weinstock: Yes...

Brokamp: ...but only 5% of companies actually have a formal plan for phased retirement.

Weinstock: Phased retirement is complicated, because if you have a pension, it can implicate your pension benefits. So if they say, "We're going to base your pension on your last five years of work," and your last five years, or your last two years, are your phasing out, then you just took a big hit in your pension, so you don't want to do that. They need to structure it so that it will not hurt the pension plan. I think that's one of the biggest problems.

Brokamp: You mentioned earlier age discrimination, and that is one of the last ways you can legally discriminate against people. And that's not just anecdotal. Legally it is an issue where you can fire people and age discrimination is at least part of the reason why you're firing them.

Weinstock: Actually, the Supreme Court, in the Gross decision in 2009, said that age discrimination had to be the only reason why this person was let go. So the standard -- the bar -- for proving age discrimination is higher than for other kinds of discrimination.

Actually, there's a bill in Congress. Just yesterday it passed out of the House Education and Labor Committee called the Protecting Older Workers Against Discrimination Act. POWADA is its acronym. This bill will right what the Supreme Court did and make age discrimination on par with other types of discrimination in the workplace and change the way that the Gross decision came down. It's going now to the House floor. I can give you the bill number. It's H.R. 1230.

There's a bill in the House, too. And they're bipartisan, actually. There's Republicans and Democrats on both bills. And the Senate bill is S. 485. And if people want to learn more about that, they can go to action.aarp.org/ProtectOlderWorkers. There's more information about the bill and [they can] contact their congressperson and say, "I support this and I want to see this bill passed."

Brokamp: Just so people know, when you say the Gross decision, what you're talking about is a case of a guy named Jack Gross...

Weinstock: Right.

Brokamp: Fifty-four years old. He was fired. He was able to prove that age was a factor, but the Supreme Court in 2009 said tough luck, because that wasn't the only reason.

Weinstock: Exactly.

Alison Southwick: Is age discrimination a uniquely American problem, or is this something facing people around the world? I imagine around the world, ages are going up as far as life expectancy, but do people in other countries face the same level of discrimination? The same problems that we do here in America?

Weinstock: Well, it's kind of interesting because there's other countries that by population are older than we are -- Japan and places like that. So I think there's a certain reverence in some cultures for older people, but there's also still the same age discrimination issues depending on the country. We've actually been working with the Organisation for Economic Co-operation and Development in Europe on the future of work, and one of the issues with the future of work is longevity and staying in the workforce.

We did a panel, recently, talking about the future of work and its implications for those who are over 50, because automation, artificial intelligence is something else we worry about. Think about artificial intelligence when you're looking for a job. Can that screen you out before you ever get a human to see your resume? We worry about that a lot, and so we've been speaking at human resources conferences about the concerns about AI.

A couple of companies have come up with things. "I want to hire people who are like my most productive people now." Well, guess what? They're all white guys in hoodies. Well, that's not good. You don't want that in your workplace. We want to make sure that any AI systems that are put out there are not going to discriminate based on age, race, gender, or anything. That's a new issue that we need to be thinking about.

There was a whole thing on Facebook about people putting ads on Facebook for jobs. You can click on the "Why am I seeing this?" and it would be because you're 18 to 34 years old. So someone 18 to 34 years old would see that job posting and someone's who's 50 would never even know that that job posting existed.

That's a real problem. We want to make sure that we're inclusive of anybody who wants to be in the workforce. And it's to an employer's detriment to not think more broadly about who's in their workforce and to ensure that they have a multitude of generations in the room.

When you think about products that are made, don't you want a variety of viewpoints about a product that you're pushing out so that you ensure that it's attractive to different cohorts of people? It just makes sense to us to ensure that the workplace is well represented by all of the multiple ethnicities and generations that make up this country.

Southwick: When we're talking about someone who's an older or experienced worker ... This is going to make it sound like I'm worried that the clock is ticking on my career, here; but, at what age [should] I start to actually feel real pressure of discrimination? When do we see that kick in?

Weinstock: It depends on the industry. I read that at some of the Silicon Valley firms, the median age is like 28 years old. I've heard in Silicon Valley sometimes at 35 you're considered old.

Brokamp: I read some of those articles, too.

Weinstock: So the Age Discrimination in Employment Act goes into effect when you turn 40, so 40 and above you're protected by the ADEA.

Southwick: Oh, wait! I'm a protected class now?

Weinstock: There you go! How about that?

Brokamp: Congratulations!

Weinstock: But I hate to tell you this. Women actually experience more age discrimination than men.

Southwick: Oh, I'm not surprised!

Weinstock: You'll probably not be even more surprised. African-American women experience the most age discrimination, and then Hispanic women, and then white women. But that's from our research. So yes...

Southwick: At any moment now. At any moment now...

Weinstock: I hope not...

Southwick: ...I'm going to start being ... Well, the average age at The Motley Fool is low 30s. I don't know. Mid-30s, maybe, if I had to guess.

Brokamp: I don't know.

Southwick: Median age? Average age? So this is a pretty young office at times. I'm glad to know that I [do not] necessarily feel particularly discriminated against.

Brokamp: I hope not.

Southwick: I hope not, but it can be kind of a challenge. This is a very social office, and depending on what stage in your life you're at, you're going to be more likely to go out for a beer afterwards. Or you're going to be more likely to need to get home and be with your kids. And so sometimes the discrimination isn't overt. It's not like someone is not actively inviting me out to a beer...

Weinstock: Right.

Southwick: ...but it's just that you're not going to think to ask the mom in the corner who you know has to jet anyway. When we think about getting older, it seems like it could be quite sinister. "Look at the old 'Bro' in the corner just being a crab." Which is true. He probably is.

Brokamp: I think you've made a few comments along those lines to me in the past.

Southwick: I've made a few comments on the show probably, I don't know, at least each of the last four episodes we've done. But yes, sometimes the discrimination or the way you get left out is not so overt. It's just we're not peers. We're not going to hang.

Brokamp: One of the things we talk to employers about is looking at their job-recruiting websites, because you can go on some of those websites and it's really interesting. Some of them are pictures, and no one looks like they're over 25 years old. Or they say, "We're a fun, energetic office." Well, I'm a mom with three kids. Fun and energetic sounds great, but I've got to go home at night and deal with three kids. I don't have time for fun and energetic.

But the message it sends is, "You don't want me. You only want a 25-year-old and that's it." So we've been talking to employers about that. "Look at the job recruitment site and see if you think it does do that sort of thing." And the other thing we see is employers who ask your graduation dates. Or ask your GPA. If you're 60 years old and you're applying for a job and someone asks for your college GPA, it says to that person, "You obviously don't want me, because who even thinks about your college GPA after you're 25 years old?"

So there's things like that that we keep, but the graduation date is a real problem. We've worked on trying to get legislation passed at the state level that would make it illegal to ask graduation dates or date of birth on a job application.

The other issue we've heard a lot about [is one] a lot of women's groups have been fighting -- we are in that fight, too -- is asking about previous salary, because it hurts women but it can also hurt older people. At AARP, when they hire you, they don't ask for your previous salary. We have an HR department that decided that there's a market value for this job. We as HR professionals should know what that market value is, and we're going to offer you a salary based on that market and not based on what you were making before, because that should have nothing to do with it.