Working past retirement age: What you need to know

Working past retirement age: What you need to know
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By Avrohom Gefen, Esq.

With older Americans staying longer in the workforce, driven by financial need, increased life spans, and a desire to stay active, employers and employees are increasingly faced with questions of age-related competency, disability, and discrimination.

According to the Federal Reserve, labor market participation for Americans 65 and older increased from 21.4% in July 2010 to 26% in February 2020. (It declined in July 2021 due to the COVID-19 pandemic but rebounded in December 2021.) The current tight labor market indicates that this percentage will continue to increase as long as there are unfilled job openings.

Despite the labor shortage, including skilled professionals, some employers still discriminate against older workers. It’s especially prevalent in the tech industry, where some companies even advertise that they are looking to hire only “digital natives,” code for younger workers and an implication that older workers need not apply.

However, older workers are not without protection. Recently, both IBM and HP were sued by older employees for age discrimination. In the IBM lawsuit, older workers are alleging that the company pushed them out while simultaneously hiring recent college graduates “en masse.”

In the HP case, over 100 former employees claim the company discriminated by laying off workers who were over 40 at a greater rate than younger employees. They also claim that HP hiring managers were instructed by management that a certain percentage of outside hires should be younger graduates or individuals early in their careers.

While age discrimination in employment is not prohibited by either the 1962 Equal Employment Opportunity Act or Title VII of the Civil Rights Act of 1964, the 1967 federal Age Discrimination in Employment Act (ADEA) does explicitly forbid discrimination against people who are age 40 or older.

The ADEA has been amended several times since, with one important amendment removing the age “cap” on ADEA claims, which was first 65 and then 70. These caps perpetuated the biased belief that age inherently affects ability, permitting employers to deny jobs to the oldest workers and to force workers to retire based solely on age. Both scientific evidence and public opinion have demonstrated that age is not predictive of job-related ability or performance (depending on the job, of course).

New York State and New York City have their own anti-discrimination laws, which are generally more strict than the ADEA’s. Both, for example, allow for individual liability for discrimination, in contrast to the ADEA.

Additionally, under the ADEA age must be the sole motivating factor for an adverse employment action. Under NYC law, an employer may be liable even if age was only a motivating factor, among several. Local laws also do not specify that an employee must be over 40 in order to allege age discrimination.

In the age of COVID-19 and remote work arrangements, employers may not permit younger employees, who may be more technologically savvy, to work remotely, while requiring older employees to work in the office.

Conversely, employers may not require older workers to work remotely, even if the motivation is to protect their health, while allowing younger workers to work on premises.

Interestingly, unlike the Americans with Disabilities Act (ADA), which requires employers to make “reasonable accommodations” for employees with disabilities, no laws require such accommodations based on age.

But older workers may have age-related disabilities, and so employers must consider whether the requested accommodation is “reasonable,” meaning it would allow the older employee to perform his or her job duties without “unduly burdening” the employer.

Older workers, and older individuals who are seeking work, face unique challenges related to their employment. Some may fail to keep up with changing technology, leading to frustration for younger, more technologically adept colleagues.

However, older workers often bring experience, both professional and personal, which can make them a valuable resource for employers.

Keeping and hiring older workers may also be the key to preventing the coming wave of baby boomer retirement from being a “brain drain,” filling jobs in highly skilled areas and reflecting a clientele that’s also aging.

Avrohom Gefen heads Vishnick McGovern Milizio LLP’s Employment Law and Commercial Litigation practices and is a key member of the Alternative Dispute Resolution practice. He can be reached at [email protected] and 516.437.4385 x119.

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