Freight hauler settles claim it had an 'unwritten policy' prohibiting hires over age 51

Dive Brief:

Norfolk Southern Corp. has agreed to pay $350,000 to settle a U.S. Equal Employment Opportunity (EEOC) age discrimination lawsuit alleging that the freight transportation company refused to hire qualified individuals over the age of 51 for railway security positions. The settlement covers lost wages and other damages for applicants aged 51 and over who applied for special agent positions from Jan. 1, 2014, through Dec. 31, 2019, who were not hired because of their age.
A Norfolk Southern employee allegedly told one job applicant the company had an unwritten policy of not hiring individuals older than 51 as special agents because it believed they would not work for the company for ten years.
The three-year consent decree resolving the case also requires the company to take "substantial non-money action," EEOC said, including changes to Norfolk Southern's Mandatory Guidance Regarding Non-Discrimination in Police Department Hiring; the inclusion of the guidance in job postings; annual training on age discrimination for all police department employees and others involved in the hiring of special agents; and periodic reports to EEOC concerning special agent hiring and age discrimination complaints.

Dive Insight:

The Age Discrimination in Employment Act (ADEA) prohibits discrimination and harassment based on age against applicants and employees age 40 or older.

In the many years since the passage of the ADEA, retirement has changed significantly. Most Americans now say they're likely to work past age 65, and the ADEA has been amended over time to limit the instances in which employers may maintain mandatory retirement policies. But the law's protections also have limits: The 7th U.S. Circuit Court of Appeals has ruled that some ADEA protections don't apply to external applicants, and the U.S. Supreme Court declined to review the ruling months later.

Despite the 50-year history of the ADEA, a recent investigation by AARP has revealed that ageism is "rampant" in hiring, employment and terminations and is the "last acceptable bias in America."

Language makes a difference in recruiting a diverse workforce, experts say. Words like "young" or ads seeking a "recent college grad" are obviously problematic but so is advertising for a "digital native." It's more subtle, but the phrase can be viewed as an effort to exclude older job applicants, experts say. Instead, employers should make clear they're seeking a candidate adept at using a specific technology. And instead of looking for someone three to five years out of school, hiring managers could ask for someone with at least three to five years of experience.

The places — both physical and digital — where employers advertise job openings can create similar problems. If recruiting efforts are solely focused on social media sites, especially if the recruitment campaign is restricted by age, or college job fairs, an employer could be open to claims that older workers are being excluded.