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What Employers Should Know About Harassment Law In A Multi-Generational Workforce

The Silent Generation, the Greatest Generation, Baby Boomers, Gen X, Millennials or Gen Y all have unique characteristics based on the years included in that generation and the life experiences they have had. For example, the Greatest Generation and the Silent Generation were both living in or fighting through World War II in their childhoods or early adulthoods, while Gen X and millennials were generations that had a nearly technology-free childhood and adapted gracefully to cell phones, the Internet, and smart devices. Today, while the Greatest and Silent generations are often retired or even deceased, the other generations are mingling frequently in social settings, family gatherings, and employment. While there are many benefits to this mingling of the generations in employment, there can also be struggles in a multi-generational workforce, such as harassment and discrimination based on age. Harassment law is meant to prevent such harassment, but employers must understand those laws and have a clear policy and plan. If you have more questions or need assistance creating a plan for age harassment or discrimination in the workplace, Schwab & Gasparini has experienced employer defense attorneys who may be able to assist you. Call our Syracuse office at (315) 422-1333, our Albany office at (518) 591-4664, or our White Plains or Hudson Valley offices at (914) 304-4353 to schedule your consultation and review your business’s legal needs.

What Is Age Discrimination or Harassment?

Age discrimination and age harassment are related but separate issues. Both are connected to an individual’s age, but the specifics of what they look like or who can engage in them differ. However, employers need to be aware of both discrimination and harassment to ensure that neither takes place in their workplace, as this would violate harassment law and leave the employer open to fines, penalties, and lawsuits.

Age Discrimination

Age discrimination is treating a job applicant or an employee less favorably because of their age. The Age Discrimination in Employment Act (ADEA) is a federal law that forbids age discrimination against people ages 40 and older. This law also applies to any aspect of employment, including hiring, firing, job assignments, pay, training, promotions, layoffs, benefits, and any other condition or term of employment. Discrimination is generally directed by an employer or someone acting on the employer’s behalf, such as a supervisor, toward an employee. Sometimes, discrimination may also be directed by a client or customer toward an employee. 

Age Harassment

Age harassment occurs when there is unwelcome and offensive conduct in the workplace based on the person’s age. This includes offensive comments, age-based slurs or insults, targeting older workers for layoffs or terminations, passing over older workers for promotions or training, assuming older individuals are not as capable, or creating cartoons, drawings, or symbols that are offensive. Some of the same behaviors that can be harassment can also be discrimination. In those cases, whether it is harassment or discrimination may be determined based on who is engaging in the behavior. Harassment can be from the individual’s supervisor, a supervisor in another area, a co-worker, a client or customer, or a vendor or supplier. Additionally, even if the harassment is not specifically directed at a particular individual, it may still be harassment. For example, if two co-workers frequently make comments about a third co-worker’s age, this may still be harassment even if the third co-worker only overhears the comments. 

Key Points Employers Need to Know About Harassment Law in a Multi-Generational Workforce

In addition to the ADEA, New York state also has a harassment law, the Human Rights Law. The New York Division of Human Rights explains that the Human Rights Law was first enacted in 1945 as the Ives-Quinn Anti-Discrimination Bill and was the first legislation in the United States to protect against certain types of discrimination. The law was renamed the Human Rights Law in 1968. Of the many changes over the decades, one that employers must note is that as of February 8, 2020, this law applies to all employers regardless of how many employees they have. There are several other things that employers should take note of with a multi-generational workforce. 

Age Is a Protected Characteristic 

Under both the federal ADEA and the New York State Human Rights Law, there is more than one harassment law that ensures age is a protected characteristic. These laws prohibit discrimination and harassment based on an individual’s age. Age discrimination or harassment is not limited to the individual’s specific age, but also applies to their generation. For example, comments such as “Boomers don’t know how to use technology,” and “People in their sixties don’t know anything about technology,” can both be harassment. 

Generational Perspectives Are Different

Each generation tends to have its own communication styles and workplace norms. For example, Baby Boomers often prioritize work commitments over others, while Millennials and Gen Z strongly believe in work-life balance and prioritizes taking care of themselves over work. Each generation has a valid perspective, but these differences can result in behaviors that could be perceived as harassment if not handled carefully. Employers should consider offering training that explains some of these differences to reduce misunderstandings. 

Microaggressions Matter

Microaggressions are subtle comments or behaviors that seem harmless but can be extremely offensive or harassing. Examples of microaggressions could include comments about appearance, such as “You look good for your age,” or “I would not have guessed you were that old.” Additionally, while harassment law only protects workers over 40, employers should remember that older workers can harass younger ones as well. Microaggressions against a younger worker might include patronizing them or making comments like, “You’re probably too young to know about that.” 

Training Is Crucial 

Many employers hold regular training on issues such as sexual harassment, but they should consider also holding training on age harassment and discrimination as well. This training should address generational differences explicitly and offer examples of ageist comments and behavior to ensure that all employees understand what constitutes inappropriate behaviors. In an effort to provide documentation in the event someone must be terminated for harassing or discriminatory behavior, employers should consider having employees sign a sign-in sheet or a form acknowledging they attended and understood the training. 

Harassment Does Not Have to Be Severe or Pervasive

The federal ADEA states that harassment becomes illegal when it is so severe or frequent that it creates an offensive or hostile work environment or results in adverse employment decisions such as demoting or firing employees. However, New York’s Human Rights Law removed the restriction that harassment must be “severe or pervasive” to be legally actionable. This means that while a victim may not be able to take legal action on a federal level, the state’s harassment law is stricter and does allow them to take legal action. This is important because many individuals who engage in these behaviors will claim it is simple teasing, calling it “just a joke,” indicating it happens infrequently, or that it is not serious. Employers must be able to work together with all of their employees in a multi-generational workforce to set clear limits around harassment and discrimination, to investigate claims, and fairly and consistently determine what constitutes harassment and what is simple teasing. 

What Is the Difference Between Casual or Simple Teasing and Age Harassment?

Casual or simple teasing is lighthearted and fun, intended to make both the individual teasing and the one being teased laugh or see the humor. Age harassment intends to harm or demean the victim based on their age. Age harassment will often be said in a ruder tone than casual teasing and often continues after the victim has expressed discomfort or irritation. However, intent, tone, and frequency are not foolproof methods to determine the difference between what is meant as friendly teasing and what is meant as harassment. Therefore, employers may wish to err on the side of caution and if someone reports harassment, treat it as such even if the alleged harasser insists it was not. By doing so, employers clearly show their employees that they will not tolerate such harassment and that pretending it was “just a joke” will not prevent them from being held accountable in a multi-generational workforce. 

How Employers Can Prevent or Reduce Age Harassment

While employers may like to think that some simple training is enough to prevent age and other types of harassment, most will likely need a more robust plan than that. Fortunately, employers are not forced to figure it out on their own. There are several things an employer can do to prevent or reduce age harassment in a multi-generational workforce. Employers can also contact an employer defense attorney with Schwab & Gasparini to learn more about their options for ensuring this harassment and discrimination does not occur in their workplace. 

Have a Clear Reporting System

One of the most important steps is to have a clear and simple reporting system. This system should include anonymous methods of reporting for victims who do not wish to be identified or those who are reporting on behalf of someone else. The reporting system should clearly explain what the company considers harassment or discrimination, who to report harassment and discrimination claims to, and how to report them. Employers should consider having multiple methods to report incidents, such as an online anonymous form, email, and in-person with two or more specific individuals in Human Resources or management. Employers should also consider having multiple people handle these claims to ensure that the individual in charge of handling them is not able to hide reports that report themselves or someone else they are friendly with or related to in the company. 

Investigate All Reports Thoroughly 

A thorough and impartial investigation should take place for each report made. All relevant information should be gathered and reviewed and disciplinary action taken if required. Employers may find it helpful to create a step-by-step instructional document outlining how to investigate these reports, such as interviewing all identified parties and collecting any evidence including texts, emails, voice mails, or video or audio footage of the alleged incidents. This can help ensure that each investigation is performed in the same manner and allows someone else to step in if the employee who is usually responsible for handling investigations is unable to investigate. 

Promote a Respectful Culture

Employers can promote a respectful culture that emphasizes respect for all generations in their multi-generational workforce. By encouraging respect and open dialogue, and actively addressing any discriminatory or harassing behavior as it happens or when it is reported, employers show their employees that they are serious about complying with harassment law and providing a safe workplace. This will not only cut down on harassment and discrimination but encourage employees to report incidents when they do happen. 

Encourage Open Communication 

While employers should offer anonymous methods for reporting harassment or discrimination, they should also encourage employees to discuss their concerns openly and to provide feedback on workplace dynamics. This can be particularly beneficial in a multi-generational workforce, allowing all generations and ages to hear the concerns and input of others and gain new perspectives. Regular department or company-wide meetings to allow employees opportunities to offer this feedback and discuss concerns can also help encourage open communication in the workplace. 

Lead By Example 

Executives and management often set the tone for how general employees treat each other, so ensuring that these roles lead by example can be critical to creating a respectful work environment. Ensure that management and other higher-up roles demonstrate respectful behavior toward all employees, regardless of age, showing other employees what is expected of them. 

Create Mentorship Programs

Mentorship programs create opportunities for cross-generational mentoring to foster collaboration and understanding. Mentorship is not always about an older individual mentoring a younger one. Mentorship can be about a more experienced individual mentoring a younger one or, when created in a multi-generational workforce, about two individuals mentoring each other, offering their differing perspectives, thoughts, and opinions so that both parties can learn something new and unique. These mentoring relationships can be long-term, allowing the partners to develop close connections, or they can be short-term, allowing employees to get to know and learn from many of their co-workers. 

Stay Updated Regarding Legal Changes

While ADEA has not undergone any significant changes since 1986, and New York’s Human Rights Law’s last update was in August 2020, any harassment law can change anytime. New regulations can be created. Employers should stay abreast of such changes to shift their internal policies and plans as needed to ensure compliance with any changes or new regulations. Additionally, it is important to remember that while most employees may not be fully aware of their rights, if they suspect that they are a victim of age discrimination or harassment, they will quickly educate themselves. Therefore, employers need to be educated regarding discrimination and harassment law to successfully investigate reports and defend themselves in lawsuits. However, it is always recommended that employers consult with a lawyer when defending themselves against a lawsuit, though it is not required by state or federal law. 

How to Terminate an Employee Who Is Engaging in Age Harassment or Discrimination

In the unfortunate event that an employer has an employee who is engaging in age harassment or discrimination against other employees in a multi-generational workforce, knowing how to terminate that employee is critical. A termination that is handled improperly or with an inappropriate reason could result in a wrongful termination lawsuit. 

Have a Clear Written Policy

The first step to terminating an employee for harassing or discriminatory behavior is having a clear written policy. This policy should outline what behaviors or comments are fireable offenses, how claims can be made, how claims are investigated, and when and how termination occurs. For example, an employer may wish to enact a “three strikes” policy that only terminates the employee after the third offense. This should be detailed in the policy, with details regarding what happens for the first two offenses, such as a written warning for the first offense and an unpaid suspension for the second. This ensures that all employees are aware of the consequences of this behavior and that each incident is handled consistently. 

Thoroughly Investigate Claims

When an employee has been with the company for a long time, or everyone likes a particular employee, a claim that they are harassing or discriminating against someone may sound unlikely. However, every claim that is made should be thoroughly investigated to ensure fairness and consistency. If a claim is made against the individual who investigates such claims, there should be a second individual who can step in and perform the investigation. 

Protect Victim From Further Harassment

When claims are made, the employer should ensure the victim or victims are protected from further harassment. This may mean moving the alleged harasser or the victim to another department, changing shifts, or suspending the alleged harasser until the investigation is complete. Employers should take care to ensure any actions meant to protect the victim cannot be construed as retaliation for reporting harassment or discrimination, as this would give the victim grounds for a lawsuit as well. An attorney may be able to guide employers regarding appropriate actions to protect victims while ensuring those actions do not appear retaliatory. 

Gather or Document Evidence

When claims are made, there will typically be evidence of some sort if they are founded. Employers should gather or document this evidence to ensure their final decision is backed up by the facts. Evidence may include screenshots of texts, emails, or other private messages, handwritten notes, photos, video, audio, or witness statements. The evidence and all other claim-related information should be kept together. New York Governor Kathy Hochul signed a new law on February 15, 2024 extending the statute of limitations on all discrimination and harassment cases from one year to three years. Incidents that occurred before that date still have one year to file their claim, while cases after that date now have three years. Employers should hold on to all claim-related information and evidence at least until the statute of limitations expires, in case an employee decides to file a claim. 

Provide Written Warnings If Not Terminating On First Offense

Some employers may implement a no-tolerance policy that terminates an employee for a first offense, while others may implement a policy that allows employees opportunities to correct their behavior. If the employer implements a policy allowing the employees chances to correct their behavior, the employer should provide written warnings for each offense that the employee is not terminated for. This provides the paper trail indicating why the employee was terminated, and also ensures that if the victim or victims file a claim, the employer can also show that they did take action. 

In addition to written warnings, the employer may want to consider implementing increasingly severe consequences up to termination. For example, the first offense may result in a written warning, while a second offense results in an unpaid suspension, and so on. However, the employer should use caution to limit the number of offenses that occur before termination to ensure they are also protecting the harassment victims. 

Give Written Notice of Termination

New York LAB §195 requires employers to provide written notice of termination that includes the dates that employment and benefits end to the employee. This notice must be provided within five days of the termination. Failure to provide notification of the cancellation date of accident or health insurance can result in penalties for the employer. 

Notify Employee of Unemployment and Insurance Rights

In addition to notification of termination and cancellation of benefits, the employer must also notify the terminated employee of their right to file for unemployment benefits. They must also provide a completed copy of Form IA 12.3 from the New York Department of Labor to make it easier for the employee to file for these benefits. 

Additionally, under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), employers with 20 or more employees are required to offer extended temporary health insurance benefits to terminated employees. New York State’s Department of Financial Services states that New York extends that requirement to employer who have less than 20 employees, which means that all New York employers are required to offer these extended temporary benefits.

Pay or Mail Final Paycheck By Normal Payday

Once an employee has been terminated, the employer is required by New York LAB §191 to issue their final paycheck by the normal payday that applies to the period during which the employee was terminated. The employer can pay the paycheck through the usual method or they can mail it if the employee requests it.

How a New York Employer Defense Attorney May Be Beneficial

Discrimination and harassment law provides employers with clear descriptions of the characteristics that employees or potential employees cannot be treated differently for, including age. Employers have a responsibility to themselves and their employees to ensure that harassment and discrimination does not occur in a multi-generational workforce. One of Schwab & Gasparini’s experienced New York employer defense attorneys may be able to assist you by helping you create policies, handle terminations appropriately, and ensure victims feel safe and protected in the workplace. We can also assist in settling or defending age discrimination or harassment lawsuits. Call our Syracuse office at (315) 422-1333, our Albany office at (518) 591-4664, or our White Plains or Hudson Valley offices at (914) 304-4353 to schedule a consultation and discuss how we may be able to assist with your business legal needs. 

Mon Apr 7 2025, 12:00am