Dive Brief:
- Pharmaceutical giant Lilly USA allegedly failed to hire older workers for sales jobs in favor of millennials so its workforce would be better “distributed ... by generation,” the U.S. Equal Employment Opportunity Commission said in a Sept. 26 lawsuit (EEOC v. Lilly USA, LLC, No. 22-01882 (S.D. Ind. Sept. 26, 2022)).
- In 2017, Lilly’s senior vice president for HR and diversity recognized at a leadership town hall that Lilly’s workforce was composed of primarily older workers, according to the lawsuit. He then announced goals for 40% “early career” hiring to add more millennials, the complaint claimed. Thereafter, Lilly allegedly changed its hiring preferences and practices to intentionally under-hire older applicants for sales representative positions. For example, it imposed higher levels of review and approval before hiring older candidates for certain jobs, the EEOC said.
- The agency sued Lilly for violating the Age Discrimination in Employment Act, which prohibits discrimination against applicants age 40 and over. Lilly denied the allegations, it told HR Dive in an email. “Lilly is an EEO/Affirmative Action Employer and does not discriminate on the basis of age, race, color, religion, gender, sexual orientation, gender identity, gender expression, national origin, protected veteran status, disability or any other legally protected status. We ... remain committed to fostering and promoting a culture of diversity and respect,” the company said.
Dive Insight:
The reminder here is that when recruiting and hiring millennials or Generation Z, it’s important not to shut out baby boomers and other older workers. Targeted practices like those alleged in EEOC’s lawsuit may not only deprive an employer’s talent base of important skills — such as increased loyalty and the ability to establish customer networks, a report from Indeed points out — they may also be illegal under the ADEA.
The statute prohibits age discrimination in any aspect of employment, including hiring, an EEOC guidance explains. Also, employers may run afoul of the law (even if unintentionally) with neutral employment practices — those that apply to everyone regardless of age — if these practices have a negative impact on applicants or employees 40 or over, former EEOC Chair Victoria Lipnic noted in a 2018 statement marking the ADEA’s 50th anniversary.
For example, employers should watch for job ads that employ dog whistles for ageism. Certain code words, such as “fresh,” “tech savvy,” “digital native,” “flexible,” “energetic,” “active” and “high potential,” can signal age bias, the Indeed report said. During the screening process, employers may unintentionally promote ageism by rejecting applicants who lack a social media presence or have a college graduation date from more than 20 years ago, the report added.
Employers can still lawfully attract millennials, a Society for Human Resource Management post explained, suggesting recruiters emphasize what millennials find important, such as performance-based compensation, flexible schedules and locations, access to decision-makers and a clear area of responsibility. But there are caveats: Don’t promise what you don’t offer. Don’t generalize; not all members of a generation want the same thing. And don’t discourage older applicants, the post cautions.
Findings by AARP revealed another way older workers may be overlooked. In a 2020 survey, more than half of the 6,000 global employers who responded said they don’t include age in their diversity, equity and inclusion policies.
In general, employers should be aware that if not handled properly, diversity efforts may prompt lawsuits, attorneys Reed Russell and Julie Girard warned in a Florida Bar Journal article. A case from 2021 illustrates the risk: After a White male former executive was fired, he sued his employer, claiming he had received strong evaluations and was told by his supervisor that his termination had nothing to do with his performance. He also alleged that he was replaced by a Black woman and a White woman.
The employer argued he was fired for performance problems, not to meet diversity goals. A federal jury rejected the argument and awarded the executive $10 million (a number that was later cut to comply with statutory caps) after concluding that race and sex were motivating factors in the decision to terminate him.
