Systemic Age Discrimination in the Massachusetts Workplace on the Rise

| Feb 15, 2021 | Employment Law |

In a recent press release,  the U.S. Equal Employment Opportunity Commission (EEOC) made it veryclear: job postings conveying preference — for example, “recent graduate”, young”, “energetic”, is an example of a recruiting practice that may involve systemic age discrimination.

This example is one of several the EEOC included in the newly released information on its website. The content is intended to provide transparency for the Commission’s approach to systemic discrimination by explaining the use of administrative and litigation tools used to identify and pursue systemic discriminatory practices.           

Systemic enforcement is an important mechanism the Commission uses to remedy discrimination that has broad impacts on industries, professions, or geographic areas.

The transparency not only helps keep organizational practices in check, but by ensuring the public, at large, understands how it works adds a level of accountability. The more a victim of discrimination understands about systemic discrimination, the more likely they will be to advocate for their rights, according to the law.

Other Actions Companies Should Avoid

Companies should make certain that recruiting and hiring pools are diverse–including age diversity. Refusing to rehire retired workers, for example, is another example the EEOC lists as a potential sign of systemic discrimination. 

Requiring an employee to sign a waiver relinquishing to the right to file a future complaint with the Massachusetts Commission Against Discrimination or assisting the EEOC in an investigation is also listed as an example. Likewise, asking employees to sign anything out of compliance with the Older Workers Benefit Protection Act could potentially land your company in hot water.

One recruiting process that all companies should review is whether they are using a data algorithm to sort through job applications based on years of experience rather than whether the candidates meet the job criteria. Using data to eliminate more experienced applicants is yet another example of what might constitute systemic age bias.

Four Steps HR Leaders Should Take

  1. For HR and Diversity, Equity, and Inclusion leaders, the first step is to read the new information provided by the EEOC on systemic discrimination. 
  2. Have a diversity, equity and inclusion communicator review job postings to ensure equity in all protected categories. If you are using third-party recruiters, be sure to vet their understanding of EEOC guidelines.
  3. Review all of your people processes to ensure “age protections” are given the same treatment as other protected categories.
  4. Ensure proper internal communications and education for all levels of the organization.

Have You Experienced Age Discrimination?

Employment attorney Renee Lazar suggests the following interactions could indicate age discrimination and warrant added scrutiny:

  1. Being told you are overqualified
  2. Being told you require a college degree even though you have previously done the work, or when a college degree is not necessary for successful job performance
  3. Being told you must take a physical when it’s not required for all candidates
  4. Being asked your age or date of birth
  5. Being asked what year you graduated from college or high school
  6. Being asked why you are seeking employment at your age or stage of life

Under most federal and Massachusetts laws, this line of questioning could be considered age discrimination.

Massachusetts employees have up to 300 days to file a complaint with the Massachusetts Commission Against Discrimination.

If you feel you have been discriminated by your employer on the basis of race, color, age, gender, religion or natural origin, sexual orientation, gender identity, and or disability, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.


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