J.J. Conway
J.J. Conway Law
Today it is generally understood that an ill-considered social media post, tweet, or video can end a career in minutes. It is also recognized that one’s past is likely to be judged under present standards. Previously expressed opinions and writings from decades ago, can reappear and be re-examined under today’s standards. Within this social framework, words and opinions, from now or in the past, can result in career-ending injuries for those in their prime. Businesses, too, can pay a price for an ill-advised social media post or opinion. With a greater sensitivity around inclusiveness and societal justice issues, most rational people do exercise some restraint in expressing opinions on the cultural issues of the day. Most sensible people are loathe to say or do anything that even remotely might cost them a job or a cycle of excruciating public ridicule on social media.
Cultural sensitivity is practiced, if not mandated, at most corporations, universities, and by those on social media platforms. And yet, for all of the societal policing, one continually tolerated form of bigotry that persists today is that of ageism. “Ageism” is understood to be the act of discriminating against or stereotyping a person because of their biological age or physical appearance.
Female actors have long been criticized for changes in their physical appearance that come naturally with age. Recently, in a movie geared towards teens, the stars were ridiculed as being “too old” to be in the movie. President Biden is ridiculed on a daily basis for his age, and President Trump has recently complained about age bias in the context of his own campaigning. So, what does any of this have to do with employee benefits? A lot actually.
Many of today’s college-educated students and young professionals show no compunction whatsoever about offering criticism of a public or private figure, such as a politician or a college professor, based near-exclusively on account of age. In other words, critiques about an individual or group, articulated very publicly, and typically posted to social media refer to the person’s age as backup and support for the underlying criticism. Oftentimes, the poster’s full name accompanies the comments or that person’s identity is easily ascertainable.
With thousands of Diversity, Equity, and Inclusion (DEI) professionals having been hired into universities in order to produce students with greater exposure to social justice protections, it begs us to legitimately question why is so much open, age-based hostility tolerated? Colleges do not appear to police it, and yet, pretty soon, businesses might be required to start aggressively policing it, lest the lawsuits start dropping like bombs.
Within American work culture, there is a real reason for concern. Graduates of colleges and universities who are moving into the work-world with these strong age-based biases that are rarely, if ever, checked will become problematic at some point. Eventually, those holding ageist ideas will be placed into decision-making roles at major institutions and organizations. This blind spot, left unchecked, will be accompanying them into those roles.
A graduate steeped in DEI awareness may be unaware of their own harmful bias against older Americans. They may be equally unaware that an age-based bias is actually unlawful as it relates to making decisions about employment, services, and employee benefits. Teaching about those protections are not as prevalent as other concerns.
The reason for inclusiveness and cultural sensitivity programming, training, and coursework is to attempt to try to stop biases from continuing to cause tangible harm to groups that have been marginalized. Discrimination in any form is harmful and demeaning. However, discrimination within the workforce can have an impact on a person’s future when it comes to hiring, firing, and advancement within an organization. When discrimination moves into the realm of decision-making in employment, it causes real and lasting harm.
So, it is worth considering whether our current societal tolerance of ageist comments and ideas will impact the lives of an older workforce, or the rights of retirees, and the protections they have in retirement. If this form of open hostility is allowed to continue unchallenged, it will not only be a blight on society, but will eventually lead to liability, jury verdicts, and a financial toll on the organizations and universities who hire the bigots and allow them to make organizational decisions.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and founder of J.J. Conway Law in Royal Oak, Michigan.
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