We recently blogged the increasing reliance on older workers among some of the nation’s largest retail chains. While we welcome the inclusion of older workers into the workforce, we caution employers about the potential impact on workers compensation. The older you get, the more likely it is that you have pre-existing conditions that may impact your ability to do the job safely.
I don’t have exact numbers, but I would guess that in 1967, when the Age Discrimination in Employment Act (ADEA) was passed by Congress, older workers comprised a minority of the workforce. Today, nearly 40 years later, the 75 million workers over 40 make up about 53% of the total workforce. Protections for older workers, in other words, are now protections for the majority. (Which of course does not mean the protection is not needed!)
“Disparate Impact”
In the years since the ADEA was passed, the Supreme Court had never decided whether it authorizes cases involving unintentional discrimination, known as “disparate impact” suits. Federal appeals courts have issued contradictory rulings on the issue.
Today the Supreme Court found in Smith v. City of Jackson, Mississippi, that discrimination need not be intentional. In other words, you don’t have to prove that the employer intentionally discriminated against workers above the age of 40. You only need to prove that the actions had a disproportionate impact on older workers. Nonetheless, the standard of proof remains high. Indeed, in this particular case, the Court found in favor of the employer.
Occupational Geriatrics?
As the workforce ages, and as people prolong their careers into their late 60s and 70s, we will be facing unprecedented issues for the workers compensation system. Keep in mind that the system was created when people trained for a single job, generally worked for a single employer, and retired right at 65. Today, people change jobs (and even careers) numerous times, they work for many different employers, and they might not retire until they reach their 70s. State legislatures across the country are faced with obsolete notions of work and retirement. In addition, the medical profession is about to be confronted with older and older people trying to overcome injuries and get back to active employment. Will medical schools soon offer a new specialty in occupational geriatrics?
Hiring is Always Risky
Any act of hiring, regardless of the age of the applicant, is full of risk. Indeed, hiring a stranger may be the riskiest action an employer makes. So we recommend that you make the hiring process as thorough and rigorous as possible. Don’t just require a written job application: read it carefully! Talk directly to applicants, preferably in a variety of settings, using different members of your team. And check references. Even if prior employers will only verify dates of employment, push hard for full disclosure. (There is such as thing as a “negligent reference”!) If your jobs are physically demanding, explore the feasibility of pre-employment physicals. Once you hire someone, you’ve made a commitment with profound ramifications for your organization. There is no such thing as a “casual” hire!
