Last year marked the 50^th anniversary of the Age Discrimination in Employment Act (ADEA), which prohibits discrimination against individuals 40 years of age or older. In a survey on ageism from AARP, nearly 2 out of 3 workers have experienced some form of age discrimination or age bias. This is a huge issue for organizations and employees.  

I recently received this note from an HR Bartender reader. Given the statistics above, I think it’s a very appropriate conversation for over here as well. The story is a bit long, but one that might resonate with many.  

I’m looking for some advice and came upon your site. I’m asking for a friend (honestly). My friend is 62 years old, not computer savvy, and barely knows how to use email. EVERYONE knows this. We are nurses, working at a small surgery center with less than 50 employees.

Our company does ALL pay increases and raises at the same time. Strange, I had never heard of that. Anyway, our boss emailed everyone a self-evaluation performance appraisal form to complete and return.

My friend didn’t get our boss’ email because she has no access to email here at work. Thankfully, someone printed out the form and gave it to her, telling her it was the self-evaluation for her review and pay raise. However, she didn’t submit her self-evaluation. Later, she asked our boss about the status of her review and pay increase. Our boss informed her that all the reviews were completed and since she didn’t return her self-evaluation, she doesn’t get a review or a raise. ‘Maybe next year’ they told her.

Everyone else I know got their review and a pay increase.

Anyway, my friend is afraid to ask anybody about it, because she thinks she will get fired. Personally, I don’t know how this type of action can be legal. I also feel she may be discriminated against due to her age. Can you help or direct me to the proper place? Thanks in advance.

I know there’s a lot going on in this story. To help us understand more, I asked employment attorney and friend Kate Bischoff to share her knowledge. Kate is the founder of tHRive Law & Consulting LLC. She’s shared her experience on HR Bartender several times. One of my favorites are her comments in this post about “Reporting Workplace Bullying to HR”.

Please don’t forget that Kate’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific detailed questions, they should be addressed directly with your friendly neighborhood attorney.

Kate, let’s start our ageism discussion with a tough question. Do organizations have an obligation to provide employees with email and computer access? I understand that a lot of people have smart phones and internet access for their personal lives, but is it a professional requirement?

[Bischoff] No legal requirement, but if they are going to conduct business over email, like completing a self-review to determine raises, fairness would dictate that the employer provide access. Giving access is not hard, so it saddens me that this person couldn’t access it.

This also adds fuel to a discrimination fire. If there was other evidence of possible discrimination and the employer didn’t give access, a jury might very well find that the employer was setting the employee up for failure.

Another tough question. If an employee isn’t tech savvy, does the company have an obligation to train them?

[Bischoff] Again, sadly, no. While many professions don’t require computer savviness, this is quickly changing with employers and they are expecting employees to come with those skills. The lack of skills is likely to disqualify someone from a position.

Follow-up question. Obviously, if using technology is part of the job, that’s a different story. Are activities like completing a self-evaluation or using employee self-service technology considered part of the job?

[Bischoff] Absolutely. If these activities were completed in furtherance of the job, they are part of it.

Regardless of the age of the employee, if an employee doesn’t complete the self-evaluation and that’s part of the overall performance management process, can companies respond by not doing the appraisal or awarding a pay increase?

[Bischoff] Yes, and it appears this employer is going to get away with it. We know that employees want feedback (positive and negative) and pay increases. If this happened to one employee, it likely has happened to another.

The lack of fairness is going to breed morale and employee engagement problems, especially as employees start talking about it. And, employees have every right to talk about their situation at work under the National Labor Relations Act (NLRA) and many state laws.

Our conversation so far hasn’t focused specifically on the age of the employee. Let’s switch gears a little from ageism. What is age discrimination? And how does it differ from ageism?

[Bischoff] Age discrimination is the unlawful use of age in employment decisions. Under the ADEA, if an employer doesn’t hire someone because they are too old, then they are discriminating. The same is true if the employer has different terms and conditions of employment based on the age of the employee. Paying an older employee less than young employees would be discrimination.

Ageism is prejudice against someone because of their age and is often displayed by comments like ‘hey, geezer’ or ‘digital native’. Ageism is often evidence of age discrimination like racism is often evidence of race discrimination.

Last question. I’m sure we don’t know the entire situation. And because the organization has less than 50 employees, there’s a chance they don’t have an HR department. What can employees do to express their concerns?

[Bischoff] Employees must speak to a manager. Managers are ‘the organization’ even if there is an HR department. They have a legal responsibility as ‘the organization’ to prevent and stop age discrimination in the workplace. If they fail to do so, ‘the organization’ can be on the hook for discrimination.

If speaking to a manager doesn’t work, then employees could speak with the Equal Employment Opportunity Commission (EEOC) or a state agency that deals with discrimination laws.

I want to extend a HUGE thanks to Kate for sharing her knowledge with us. Please be sure to check out Kate’s blog for more insights. 

According to AARP, older workers are the fastest-growing segment of the workforce. This is important to organizations who are looking for good workers. It makes absolutely no sense to treat older workers badly or discriminate. Older workers can provide value to the company’s bottom-line.

I can’t help but end today’s post with a message of tough love to older workers. Technology isn’t going away anytime soon. If you’re one of those people who is thinking about staying in the workforce as long as possible, then learning a bit more about technology is important. You don’t have to become a computer programmer to be proficient. Just something to think about…