Ageism may be the last tolerated form of discrimination in the workplace. It’s a topic that we don’t hear much about in the media, but perhaps we should. Recent lawsuits against T-Mobile US Inc., Amazon, and Cox Communications have claimed that targeted employment ads on Facebook have excluded Americans over 40, and have resurfaced the topic.

The Law as it Applies to Ageism

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination in employment practices including hiring, terms, conditions, retention, compensation, and benefits. The legislation was enacted as a response to conditions that Congress found specifically affected older workers:

1. Older workers were disadvantaged in retaining jobs, and in regaining employment when displaced from jobs.
2. Age limit, regardless of potential for job performance, had become common practice.
3. Durations of unemployment were growing more for unemployed older Americans than for younger Americans.
4. Arbitrary age discrimination was particularly prevalent in industries affecting commerce.

The Law Is Easy to Break and Violations are Difficult to Prove

Though the ADEA law exists and has been enforced with legal precedent over the decades, technology is making it easier to evade. For example, while the lawsuits involving Facebook ads allege that people over 40 were excluded from seeing these ads, there is plausible deniability in that it is legal to target employment ads to specific age demographics.

According to SHRM, “What matters is that marketing is broadly based and inclusive, not simply focused on a particular age group.” It’s an easy threshold to clear, while still excluding older workers, and it’s made even easier by the inclusion of youth-targeting code words like “digital native,” “flexible,” and “energetic.” Similar circumventions of the ADEA prohibitions and unconscious biases that lead to age discrimination are both easy to imagine. Recent studies show that such practices are gaining momentum—and they are difficult to prove.

Consider these statistics:

1. Of the 18,376 ADEA cases filed with the U.S. Equal Employment Opportunity Commission in 2017, only 2.2 percent were found to have a “reasonable cause.”(USAToday)
2. The first year EEOC enforced the ADEA, it received about 1000 claims. As recently as 2016, it received more than 20,000 claims. (HRDive)
3. Most Americans age 50 and up — 8 in 10, according to AARP research — say they want to see Congress create stronger laws to prevent age discrimination at work. (AARP)
4. Nearly two-thirds of workers aged 45-74 say they have experienced or observed age discrimination in the workplace. (HRDive)
5. In employer diversity hiring plans, only 8% see age as a dimension of diversity. (HRDive)

Where We Go from Here

More than fifty years after the passage of the ADEA, clearly more progress needs to be made. Many industries have responded positively to recent research that shows productivity increases with age-diverse teams, especially technology companies. Other research shows that older workers are easier to retain, and therefore, investments made in their development are more likely to pay dividends. Yet, given the issue of unconscious bias, most industries and companies would do well to dig deeper into their practices to determine if ageism is a concern.

Here are a few questions to consider in your HR department:

1. Are we offering equal quality and quantity of professional development opportunities to all employees, regardless of age?
2. Does our record show equal opportunities for advancement within the company for employees of all ages?
3. Do we as individual HR professionals and department managers have some negative perceptions of older workers that are not grounded in research?
4. Are older workers disproportionately affected when we have to downsize?
5. Are our job advertisements suggestive of an age preference?
6. Do our website and social media platforms show imagery of an age-diverse workforce?

It will take more than legislation to completely overcome age discrimination in the workplace, but it is to the benefit of both employers and employees to do so. It’s also a benefit to industries and to society at large to improve individual quality of life through meaningful work—for the duration of life.