Older Workers, Cognitive Impairment, and Discrimination

Two federal statutes regulate the options available to employers who want to avoid potential problems that might result from older workers with cognitive impairment. The Age Discrimination in Employment Act (ADEA), first passed by Congress in 1967 and amended several times since, was designed “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment” (6). In general, the ADEA prohibits disparate treatment based on age for workers who are at least 40 years old. A second statute, the Americans With Disabilities Act (ADA), passed in 1990 and amended in 2008, is aimed at preventing discrimination against workers who have or are perceived to have a disability severe enough to affect major life functions (7). Together, these laws create a structure within which employers must operate when dealing with issues related to age and impairment.

Perhaps the best-known limitation imposed by the ADEA is the proscription of mandatory retirement ages. Once common in the U.S. workplace and still often encountered in other countries, mandatory retirement is limited by statute to a small number of specified occupations. The ADEA allows jurisdictions to set mandatory retirement ages for firefighters and law enforcement officers, as well as for people “employed in a bona fide executive or a high policymaking position” who are covered by retirement plans; other federal laws permit fixed retirement ages for commercial airline pilots and air traffic controllers (8). When retirement is imposed by age 65, employers can avoid the period of greatest risk for cognitive impairment. In the absence of mandatory retirement, employers are left to rely on other mechanisms to identify impaired workers.

One approach that some employers have attempted to implement is mandatory screening of workers who reach a given age. In 1977, for example, the Commonwealth of Massachusetts enacted a law that required many classes of employees to pass a medical examination when they reached age 70 and to do so annually thereafter. A challenge to the statute was brought in the federal courts in 1989 by the Equal Employment Opportunity Commission (EEOC), the federal agency designated to enforce the ADEA. Although a federal district court granted summary judgment for the state on the grounds that Congress had not expressly prohibited annual medical examinations, the First Circuit Court of Appeals ruled that the state law conflicted with and was preempted by the ADEA and struck down the state’s requirement (9).

Notwithstanding the decision in the Massachusetts case, some employers have continually attempted to impose various mandatory screenings of older employees. The ADA, which precludes preemployment medical examinations, allows job-related examinations after an offer is made but only if required of all employees. Once employment has commenced, however, employers cannot inquire about an employee’s disability status or require evaluations “unless such examination or inquiry is shown to be job-related and consistent with business necessity” (10). The vagueness of that standard has opened the door to efforts to require screening for various groups, including physicians. In 2021, the EEOC brought suit against Yale–New Haven Hospital for its requirement that practitioners on its medical staff who reach the age of 70 years undergo “a neuropsychological screening evaluation and a basic ophthalmologic examination” each time their clinical privileges are renewed (apparently every 2 years) (11). The hospital deems this mandate part of their “Late Career Practitioner Policy,” which supplements the usual evaluation of a physician’s skills and practices as part of the peer review process involved in renewing privileges. The EEOC has alleged that the hospital’s practice violates both the ADEA and the ADA, which apply to physicians as much as they do to other groups (12). Litigation in the case is ongoing, focused currently on the question whether the practitioners addressed by the policy are functionally “employees” of the hospital and thus covered by the two statutes.

One approach that is permitted under federal law is targeting examinations, including standardized assessments such as neuropsychological testing, at employees whose behavior or performance has provided reason to believe that their cognitive status may be affecting their job performance. Cognitive impairment affecting professional duties appears to be the situation with Judge Newman, although federal judges, who are guaranteed life tenure by the U.S. Constitution, are covered by a judiciary-specific law that she is now accused of transgressing. In light of the concerns that had been raised about her performance and behavior, the investigative committee found that Judge Newman’s failure to cooperate with the requested examinations constituted misconduct that warranted the imposition of sanctions for having “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” (13).

In most employment situations, testing that is limited to employees for whom there is reason to believe that cognitive impairment may be affecting their work should offend neither the ADEA nor the ADA. If work performance or behavior in the workplace is the standard criterion that is being applied to identify candidates for further evaluation, then the decision is not being made on the basis of age and would not appear to violate the ADEA. Similarly with regard to the ADA, targeted evaluations would fall under the exception that allows employers to request assessment when it “is shown to be job-related and consistent with business necessity” and again is not driven by assumptions regarding the association between age and cognitive impairment. A worker who declines to undergo an examination in such a circumstance might, as has Judge Newman, face disciplinary action or termination.

Even evaluations limited to employees whose performance is deemed to show evidence of cognitive impairment may, of course, be susceptible to abuse. Employers might scrutinize the behavior of their older workers more closely on the basis of the known association of age with the onset of neurocognitive disorders. Employers might, perhaps even without conscious awareness, establish lower thresholds for intervention when older employees show declines in productivity than they do for younger workers. Even without mandating an evaluation, employers might decide to “ease out” an older employee at the first sign of what they consider to be behavior raising cognitive concerns. All of these actions, although nominally targeting poor performance, would constitute discrimination under both the ADEA and the ADA. Although it might be difficult for the EEOC to demonstrate a pattern of behavior by a given employer that constitutes de facto age or disability discrimination, with clear enough evidence, employers could face liability for such conduct.

The United States and other countries with advanced economies and aging populations will increasingly face issues regarding older workers, some of whom will begin to experience cognitive impairment while still in the workforce. Encouraging workers to remain active beyond standard retirement ages will be important to satisfy demands for labor, especially in skilled positions. The Association of American Medical Colleges, for example, estimates that by 2034, the United States will face a shortage of between 37,800 and 124,000 physicians (14); retaining older physicians in the workforce will be essential to help fill that gap. In addition, delaying retirement will help reduce demands on Social Security and other safety-net programs currently facing the prospect of exhausting their funds.

Hence, approaches will need to be developed on the basis of clear rules for identifying problematic performance and behavior. Such rules should ensure fairness to workers (including professionals such as judges and physicians) but also protect the interests of employers and the public. New approaches could include routine assessment of worker performance throughout an organization, conducted in a nondiscriminatory manner that does not single out older employees for more intensive scrutiny. Clear standards will also be essential for determining when sufficient evidence of impairment is present to warrant targeted assessments. These proposed measures do not seem like unattainable goals in a society committed to treating all its members with respect.