Between 2000 and 2010, the population 45 to 65 years old grew 31.5 percent to 81.5 million.1 This age now makes up 26.4 percent of the total U.S. population, the vast majority of whom remain in the workforce. (Id.) Many of the people in this demographic are faced with the possibility of being singled-out or terminated on the basis of their age. It should come as some relief to learn, then, that state and federal law protects most workers age 40 and older from workplace discrimination. See, Wis. Stat. §§ 111.31-111.395. Wisconsin’s Fair Employment Act applies to nearly all private and public employers, regardless of the number of employees. The federal age protections, meanwhile, are contained in the Age Discrimination in Employment Act, known as the ADEA, which applies only to employers with 20 or more workers. See, 29 U.S.C. §§ 621-34. This blog post will briefly address the protections afforded in Wisconsin under its Fair Employment Act.

State law protects older workers against discrimination in discharge, job assignments, leave or benefits, licensing, retirement benefits, hiring, pay, promotion, training and other employment actions. See, Wis. Stat. §§ 111.31-111.395. The law also prohibits an employer from retaliating against applicants or employees who assert their rights under the law. (Id.) Employers are also responsible for ensuring that older workers are not harassed on the job because of their age. Unlawful harassment may include persistent remarks about a person’s age or other behavior, which interferes with a person work performance or otherwise creates an intimidating, hostile or offensive work environment.

Unfortunately, employers can discriminate against people over the age of 40 in a few different contexts. Specifically, state law contains the following exceptions, which permit an employer to consider age in its decisions: 1) Hazardous employment (if the job involves physical danger or is hazardous, such as law enforcement or firefighting); 2) Future advancement to a higher job (an employer may hire a younger person if the knowledge and experience to be gained in the job is required for future advancement to a managerial or executive position); 3) School bus drivers (see, Wis. Stat § 343.12(2)); 4) Insurance purposes; and 5) Retirement plans (so long as the provisions are bona fide and not a ploy for age discrimination or require involuntary retirement because of age).

Wisconsin law also prohibits employers from dispensing employment application forms or other materials which imply or express a limitation based on a person’s age. Therefore, ads calling for “young or recent college graduates” or “youth-oriented applicants” may be considered unlawful. Application inquiries regarding a person’s age are also prohibited, except where the inquiry is to determine if a person is “old enough” for a specific job. Similarly, an employer’s use of the term “overqualified” may be a sign of age discrimination during the application process. It is unlawful for an employer not to hire an experienced older person based merely on the assumption that an older worker might become bored or dissatisfied and leave the job.

This blog post briefly addressed the scope of the protections afforded under the Wisconsin Fair Employment Act. There are many more issues and complexities to the law and its application to older workers, including the law’s reach into lay-offs, promotions, training, and performance. Persons who believe they have been discriminated against because of their age should contact us to discuss their particular circumstances.

1 https://2010.census.gov/news/releases/operations/cb11-cn147.html

Colin Good

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