Expectations about the technological abilities of federal (and all other) employees may have changed and evolved because of the COVID-19 pandemic. During quarantine, many people had to work from home and use technology from a remote location. Naturally, this may have been a smoother transition for employees with solid footings in technology. Depending on a person’s technical literacy, the time and effort to set up and function at an acceptable level from home may have impacted productivity or created an impression that the employee’s skills were lacking.
Generalizations about older people and technological ability
As a result, federal employers may have developed higher expectations of an employee’s technological proficiency during COVID-19. A challenge for federal workers over age 40 can be the stereotype that the older a person is, the less technologically capable they are on the job. This can be an issue whether that job is in a technological field, or they use a variety of technology for their otherwise nontechnical job. The stereotype may also extend to a belief that older employees are harder to train on new or unfamiliar technology.
Is there now an age discrimination problem in the federal workplace because of ageism based on assumptions about the tech abilities of older workers? Are supervisors and others making personnel decisions that unfairly discount mature, experienced internal candidates out of hand for this presumed trait? After all, while younger adults were born into a technologically advanced world and learned much by osmosis, computers have been around for decades and many seasoned, older people are highly efficient and can learn quickly.
Seek legal advice
If an older federal employee is not promoted and feels wrongfully passed over because of their age, they should speak with an attorney with specific employment law experience in the federal employment sector to understand potential legal options. For example, remedies for lack of equal opportunity may be available within the person’s agency, before the Equal Employment Opportunity Commission (EEOC), in court or elsewhere.
Legal counsel can be extremely helpful because the law of age discrimination against federal employees is complex as are the procedural requirements. For example, early and strict deadlines exist for many types of claims.
What do ADEA and the U.S. Supreme Court say?
The Age Discrimination in Employment Act (ADEA) is the main federal law prohibiting discrimination based on age (40 or above) in hiring and employment. The ADEA imposes a higher standard for the federal government as an employer than it does for private employers and state and local governments. In other words, more is expected of a federal employer when it comes to fair treatment of older workers.
The ADEA requires that almost all federal-sector employers must make “personnel actions” impacting people aged 40 or older “free from any discrimination based on age.” The U.S. Supreme Court has said that this means “personnel actions [must] be untainted by any consideration of age.”
The Court decided in Babb v. Wilkie that a federal employee does not need to show but-for causation – that without illegal age discrimination, the employer would not have taken the negative action. Rather, for a violation of the ADEA, the worker must only show that age discrimination played some part in the decision-making process.
In the court’s words, “[i]f age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.” Even if the “difference in treatment did not affect the outcome,” it is egregious enough to violate federal law if “differential treatment” because of age occurred, even if that treatment did not directly cause the personnel action.
However, an employee who proves but-for causation (that without the discrimination the adverse personnel action would not have occurred) may be eligible for more drastic legal remedies.
An attorney can explain how ADEA’s age discrimination bar applies to your particular experience as a federal employee.