In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts and Employment Law Subject Matter Expert Vanessa Greene discuss age-related litigation and harassment in the workplace.
The U.S. Bureau of Labor Statistics projects there will be an increase in workers ages 55 and older, including a rise in those older than 65 as a percentage of the overall workforce, Roberts says. Age-related litigation in the workplace is also spiking, especially allegations of age-related harassment, and discrimination.
Age Discrimination Laws
Both federal and California laws address age discrimination in the workplace, Greene says. At the federal level, there is the Age Discrimination in Employment Act (ADEA), and under state law, there is the Fair Employment and Housing Act (FEHA).
These laws prohibit workplace harassment and discrimination on the basis of age, applicable to those who are 40 years of age or older. Those under the age of 40, she points out, don’t have a legal basis to bring an age discrimination claim.
Hoglund v. Sierra Nevada Memorial-Miners Hospital
This year, the California Third Appellate District Court upheld an award of $2.5 million in damages in an age discrimination and harassment case, Hoglund v. Sierra Nevada Memorial-Miners Hospital.
In this case, Jessica Hoglund, an employee at the hospital, had worked her way up to becoming the sole laboratory supervisor. Shortly after she was promoted to this position, Rhonda Horne was hired as the director of clinical operations at the hospital, and she became Hoglund’s new direct supervisor.
Horne, age 50, constantly made derogatory comments about Hoglund, age 56, calling her things like “sloppy” and “old-fashioned.” Horne would say things like, “Hoglund, you’ve been at this hospital since the dark ages,” and then criticize her for not using things like scheduling software, even though Horne never provided Hoglund training on how to use that software. Horne also made comments like, “I want to hire babies because they’re easier to train.”
When Hoglund returned to work after a leave of absence to care for her sister, who had cancer, her office was moved to a wheelchair storage closet in a separate building that had no windows and no ventilation.
Hoglund reported Horne’s behavior to the human resources department multiple times, but her complaints were dismissed and no investigation was conducted.
After about six years, the hospital reduced its workforce and, influenced by Horne’s biased evaluations of Hoglund, terminated Hoglund at the age of 62, replacing her with a much younger employee. The reasons the hospital gave for Hoglund’s termination appeared unfounded, Greene explains. The hospital stated things such as Hoglund was lacking computer skills and she managed only outreach staff, which were untrue.
Roberts points out that this case shows how much liability an individual supervisor can create.
“Supervisors can create substantial liability for us when they’re unchecked and when human resources doesn’t necessarily do the proper response to stop the conduct,” he says.
Important Takeaways
Employers can glean several important takeaways from the Hoglund case. Greene highlights that employers should:
- Not make generalizations about older workers;
- Ensure that supervisors are properly trained and, at a minimum, complete California’s mandatory harassment prevention training every two years;
- Ensure supervisors are trained on how to communicate professionally, how to document decisions properly, and how to avoid biases when making decisions;
- Conduct investigations promptly and thoroughly when a complaint is made; and
- Monitor workplace culture. Employers should regularly assess and address potential issues going on in their workplace, such as by conducting regular employee feedback surveys or holding focus groups to understand employees’ concerns.
Generational Diversity Challenges
In today’s workforce, there are five different generations that may be working in the same space. There are traditionalists (World War II generation), Baby Boomers, Gen X, Millennials, and Gen Z, the newest generation in the workforce. Each of these generations grew up in a radically different time, shaping not only how they see the world, but also how they show up in the workplace, Greene explains.
This generational diversity, while it brings opportunities, can also bring some challenges to today’s workforce.
For example, one challenge is a difference in communication styles/preferences. Older generations may tend to prefer more face-to-face communication, while younger generations might prefer more digital methods of communication. A potential solution for this, Greene says, is for employers to use a mix of different communication methods in their workplace. This way, workers have an option to select the method that works best for them.
Another challenge is that some workers may need additional technology training and support.
“We never want to deny an employee a training opportunity because of their age or make assumptions that they need or don’t need this training because of their age. So open that door for everybody to get trained as needed,” Greene stresses.
Employees may also differ in their expectations for feedback. Older generations may tend to be more familiar and comfortable with a formal review process for feedback, whereas younger generations might prefer regular check-ins and other less formal feedback methods. Employers can tackle this challenge by customizing their feedback methods to suit the individual preference of the employee.
Lastly, another challenge employers may face in a multi-generational workforce may be a culture of stereotyping. Employers can overcome this by providing diversity training and promoting a culture of inclusivity and respect.
“We really want to make sure we’re fostering a culture where both similarities and differences are appreciated and respected. And I think this really starts from the top down. So upper management needs to be the one to set the example here. If it’s not happening at the top, it’s probably not going to happen at all,” Greene says.
