Preventing Age Discrimination Against Older Workers
As the population ages, we will increasingly rely on older workers. But how can we ensure they can still do their jobs without discriminating against them?
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The performance of older people in important positions has been much on the public mind of late in the United States. An 81-year-old senator froze repeatedly at press conferences. A 96-year-old judge was suspended when she declined to cooperate with an evaluation of her cognitive function. And of course, an incumbent president who would have been 86 years old when completing a second term, pulled back from seeking another four years in the face of spiraling public concern over his capacity to perform his job.
As the U.S. population ages—16.3% of our population was 65 years or older in 2020, a number expected to exceed 20% by 2040—these concerns are likely to surface more often. And our political leaders are not the only people who will be affected. The average age of cardiac surgeons is 59 and more than half of psychiatrists are 55 or older; many will be working into their 70s and beyond. Indeed, workers of every sort are staying in their roles later in life. Ensuring that they can still do their jobs is a key consideration for our functioning as a society. But we need to do so without discriminating against our older workers.
With an aging population, the U.S. increasingly will rely on older workers.
Two federal statutes meant to prohibit age-based discrimination come into play here. The Age Discrimination in Employment Act (ADEA) of 1967 promotes “employment of older persons based on their ability rather than age” by prohibiting disparate treatment based on age for workers who are at least 40 years old. The ADEA’s greatest impact was in abolishing mandatory retirement ages for all but a small group of occupations (e.g., firefighters, commercial airline pilots). It also has been interpreted to preclude mandatory screening exams based on age, although that limitation is still subject to ongoing litigation. The Americans with Disabilities Act (ADA) of 1990 went beyond the ADEA by barring discrimination against all workers based on real or perceived disabilities.
How can we reconcile our desire and the legal mandate to avoid discriminatory ageism with the reality that many functional abilities decline over time? Although the ADA prohibits preemployment medical examinations, it does allow job-related examinations after an offer is made if required of all employees. Current workers, however, cannot be compelled to undergo evaluations “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” This exemption allows employers to compel workers to undergo evaluations, such as neuropsychological examinations, when their behavior or performance suggests that cognitive status or other limitations may be negatively affecting their ability to do their job.
Discrimination can occur, however, even when evaluations are nominally limited to workers with performance difficulties. Older employees might have their work subject to greater scrutiny on the basis of their age or face evaluations in the wake of fewer signs of impairment than younger workers. Or they may be “eased out” of their positions in anticipation of a reduction in productivity because of their age at the first sign of what employers consider to be cognitive slippage. Both age-based targeting and preemptive loss of employment would constitute discrimination under the ADEA and the ADA.
With an aging population, the U.S. increasingly will rely on older workers. For example, by 2034 the U.S. will face a shortage of between 37,800 and 124,000 physicians. Retaining competent, older physicians in the workforce will be essential to meet our medical needs. To ensure that older doctors are able to continue providing quality care—and other older workers can still do their jobs—we will increasingly see non-age-based assessments of worker performance. And for employees with declining productivity, more frequent targeted assessments are in the offing. This combination of routine and for-cause evaluations can protect workers from discrimination while ensuring their continued productive functioning.
