As employers across the nation try to navigate running a business during a pandemic, the Equal Employment Opportunity Commission issued a warning about age discrimination. Workers aged 40 and older should be on the lookout for policies that could amount to discrimination.

Federal law makes it illegal for employers to treat older workers (40 and up) differently based solely on their age. This prohibition against differential treatment (known as “disparate treatment” in legal terminology) applies to:

  • Terms of employment
  • Benefits
  • Hiring/firing
  • Promotions/demotions
  • Job conditions
  • And other aspects of employment

It covers employers with 20 or more employees.

Examples of “benevolent” age discrimination

In the current climate, employers may be tempted to treat older workers differently because they’re in a high-risk bracket. However, even well-intentioned actions may amount to discrimination. Examples include:

  • Restricting who can come into the office based on age
  • Requiring separate working or eating areas for older workers
  • Mandating heightened testing or screening protocols for older workers
  • Imposing age-based schedules or breaks

In a very public example, the NBA commissioner came under fire for singling out senior coaches, remarking that they might have to sit at separate benches for their own protection.

A fine line

Note that, under federal law, employers can provide older employees with more favorable terms or conditions of employment. For example, they can give older employees the option of working from home or more time off than younger workers. There’s a fine line, however, between offering a benefit versus requiring something that might seem like a benefit but actually isn’t. When in doubt, talk to an employment lawyer about your situation.