Age Discrimination

During the economic boom in America, it was relatively easy for an aging work force to get jobs. But times have changed. Why work for those 50 and over will never be the same.

At a Kmart store in Honolulu, federal investigators with the Equal Employment Opportunity Commission discovered a shocking case in which a worker's age was used to torment her.

When a manager told the 70-year-old pharmacist she was "too old" for her job and criticized her for being "greedy" because she wanted to work, top Kmart managers failed to act. The manager continued to badger the pharmacist with comments about her age, sending one message to her and to the entire department: "You need to retire from pharmacy work now.

Despite her complaints to the manager's supervisors, nobody at Kmart stopped him from assigning the pharmacist to work Sundays, when the supervisor knew she usually attended church. Instead, Kmart managers threatened her for complaining. Finally, the pharmacist complained directly to the EEOC, which ultimately backed her complaint of age discrimination. In 2010, Kmart settled the case for $120,000, and the EEOC admonished the chain store's top managers.

"Older workers should be valued for their experience, not viewed as a liability," said Anna Y. Park, regional attorney for the EEOC in Los Angeles, which includes Hawaii in its jurisdiction.

Rise in age bias complaints

Such actions are necessary as millions of baby boomers reach their 50s and 60s. Because of the recession, EEOC has reported a steep rise in the number of age-related discrimination claims. In 2009, the EEOC reported 22,778 age discrimination claims, a nearly 38 percent jump from only 16,548 three years earlier, before the recession began.

The Age Discrimination in Employment Act, passed in 1967, made it illegal for employers to discriminate against workers age 40 and older, whether they're applying for a new job or working in the same one they've had for years. But age bias, they say, keeps many qualified seniors from working in the years leading up to retirement.

"It would be nice to say age discrimination is a thing of the past, but it isn't," says Laurie A. McCann, an attorney for AARP. "That doesn't mean older workers aren't vulnerable."

Even if you're an older worker with a steady job, you have good reasons for fearing being replaced by a 20- or 30-year-old who's willing to work longer hours for lower wages.

In a 2010 Sloan Center on Aging and Work report called "The 'New Unemployables,' " researchers found that older workers were less likely to find new jobs than younger unemployed workers. Older workers were also working involuntarily part-time because they couldn't find full-time jobs.

More than ever before, researchers found, age is playing a big role in whether workers get fired, rehired or interviewed for jobs.

Discrimination at an earlier age

In fact, age discrimination is starting earlier, according to experts -- in some cases as early as the 40s or even the 30s.

To make sure they get a response, some employees remove traces of their veteran status, omitting dates they worked for previous employers and colleges they attended.

Some, like Eva Lopes* of Oakland, California, hit a roadblock even getting an interview. After years of working at a university, she was laid off. But nearly two years later, she has still to get a new job.

Lopes, 50, has competed with younger applicants for jobs similar to ones she held decades ago.

"I'm not getting any responses," she said. "And these are jobs that I was doing in my 20s."

Worried employees hope to erase the telltale signs of age by eliminating jobs from their resumes and the normal signs of aging from their faces. Between 1992 and 2005, plastic surgeons reported an increase in the number of men in their 50s, 40s, and even 30s who had cosmetic surgery in order to look younger. Liposuctions and eyelid surgery were two of the most common procedures. The primary motivation of these men? To compete successfully against more youthful employees in the workplace, according to the American Society of Plastic Surgeons.

Some research has backed up the claim that age discrimination is beginning earlier. A 1996 study of age-bias lawsuits by a Chicago-Kent College of Law professor found that 26 percent were filed by people in their 40s -- a jump from 18 percent, the figure reported in a study done just 10 years earlier.

"It used to be that people in their 60s were [considered] over the hill. Then it was people in their 50s," says Howard Eglit, the law professor who wrote the 1996 study. "These days, with the rapid change in technology, the increase in specialized types of knowledge, people in their 40s are over the hill."

But proving age bias is extremely difficult, and that's why the majority of older workers who feel they've been discriminated against never file complaints. Most workers settle out of court and retire early.

"It's an intimidating process. A lot of these people don't get to that level. They just get very discouraged and don't file a case," says Sheldon Steinhauser, a college professor and consultant on aging issues. "They're thinking, 'If I don't take that early-retirement package they're offering, I won't have any money.' "

Discrimination on the basis of age is often a subtle process. Steinhauser relates the story of one executive in his early 60s who went on vacation and returned to his office to find his belongings boxed up. He was reassigned to a new job with less responsibility, at first at the same salary. His younger replacement had no training in the field, Steinhauser says. Eventually the older executive was given more responsibility, but his salary was cut. He stayed on the job, feeling increasingly depressed and angry.

Seniors becoming new entrepreneurs

There's a popular belief that most startups are led by young entrepreneurs in their 20s and 30s. But in fact, entrepreneurial activity in the group aged 55 to 64 is even higher than it is among younger people, according to a report called The Coming Entrepreneurship Boom from the Ewing Marion Kauffman Foundation. That trend is likely to continue, researchers said.

Many of those older workers are doing so out of self-defense, because the economy has worsened and age discrimination is rising. Moreover, "a steady increase in life expectancy also means that Americans are not only living longer but also living healthier longer, suggesting that those entrepreneurial 60-year-olds could be 2020s entrepreneurial 70-year-olds," according to the report.

Even when jobs expand faster than employers can fill them, many companies fail to take steps that would allow employees to keep working until they retire, even if it's only part-time.

In a Society of Human Resource Management and AARP survey, 73 percent of the human resources officials polled said their companies gave older workers no opportunity to work part-time, and only 61 percent allowed older workers to move into jobs with lower pay and less responsibility.

The two groups also surveyed attitudes about older workers, and although the respondents perceived these workers as more reliable and loyal, 66 percent agreed or strongly agreed with the statement that they are more afraid of learning new technology than their younger counterparts.

Even if all this (or your own experience) makes you worry that you'll be axed because of your age, Steinhauser advises keeping up a good front. "Companies continue to say they want employees who demonstrate their enthusiasm and energy," he points out. Even if you fear losing your job, "you want to make sure it doesn't become a self-fulfilling prophecy."

Filing a lawsuit, of course, is an option of last resort. It's expensive, time-consuming, and often emotionally wrenching, and victory is far from certain. Here are other things you can do to protect yourself against discrimination and keep your job:

Keep your skills as up-to-date as possible. Investigate training opportunities, and make sure your supervisor knows you're willing to upgrade your skills in order to keep your job. If your employer pays for training courses to upgrade your skills, take advantage of them.

Network with friends and former colleagues. Seek out organizations that help you with your resume and finding employers who are hiring, such as Forty Plus and job-search networks such as Exec-U-Net. Contact friends and former colleagues; use volunteer activities, job web sites, service organizations, and social events such as holiday parties and family gatherings to renew your work contacts.

Speak up. If you sense layoffs are coming, talk to a supervisor and find out when they'll occur and what criteria the company will use to make cuts, such as seniority or geographic location. Keep a record of your conversations. If necessary, contact a human resources director and explain your concerns.

Document discrimination. If you feel you're facing age discrimination, make a record of events, conversations, and memos that could strengthen a legal case if you decide to bring one. Keep copies of your job evaluations, and document conversations you have with supervisors and managers. Include the date, what you talked about, and names of other people who were present. Also keep track of talks with other workers who believe they've been victims of age bias. When you think you've have evidence of age bias, call an attorney for advice.

Tips for managers

Peter Petesch, a partner with the Washington D.C. law firm Ford and Harrison, which represents management on labor issues, says businesses need to be very careful about how they terminate older employees, he says. If an employee's work is below par, he advises employers to document evidence to that effect and to be honest with the employee about the reasons for his dismissal.

The Society for Human Resource Management also has practical advice to help supervisors avoid age-discrimination complaints:

  • When advertising an open position, make sure interviewers and job advertisements refrain from using words such as "young" or "youthful." Make sure not to ask candidates age -- or health-related questions.
  • Keep age jokes out of the workplace. Even decorating a worker's cubicle with black balloons or banners reading "Over the Hill" on his or her 50th birthday could prompt a complaint.
  • If you do have layoffs, make sure you keep a record of the age, gender and racial makeup of your workforce and that you document the business purposes for laying off workers.
  • Consider offering early retirement incentive plans with attractive severance packages instead of forced layoffs.
  • Keep performance evaluations up to date, so they can be used to support decisions on who gets laid off.

Lopes, who volunteers with a museum while she's job hunting, also keeps active by freelancing in cosmetic sales. "I'm working part-time," she said. "Everyone tells me that's the way to go until you can find something full-time."

* Eva Lopes is a pseudonym.

Further Resources

Equal Employment Opportunity Commission (EEOC) http://www.eeoc.gov
This federal agency enforces civil rights laws and provides education and help to older workers.
800-669-4000

AARP http://www.aarp.org
Through its Foundation Litigation unit, this group advocates the interests of older workers and provides training and education through its local chapters. The group also has tip sheets on avoiding age discrimination in job interviews, writing resumes and networking on its Web site.
800-424-3410

Forty Plus of North America http://www.fortyplus.org
This membership group was founded to help executive and professional workers over 40 find jobs. A list of chapters can be found on the group's web site.

References

Boston College. Sloan Center on Aging and Work. The "New Unemployables." November 2010. http://www.bc.edu/content/dam/files/research_sites/agingandwork/pdf/publications/IB25_NewUnemployed.pdf

Equal Employment Opportunity Commission. Age Discrimination in Employment Act (ADEA). Charges FY 1997 - FY 2009. http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

Equal Employment Opportunity Commission. Kmart To Pay $120,000 To Settle EEOC Age Bias Suit. March 24, 2010. http://www.eeoc.gov/eeoc/newsroom/release/3-24-10.cfm

Stangler, D. The Coming Entrepreneurship Boom. Ewing Marion Kauffman Foundation. June 2009. http://www.kauffman.org/uploadedFiles/the-coming-entrepreneurial-boom.pdf

Eleven Tips for Effectively Handling and Responding to a Charge of Discrimination, Edmund Cooke et al, Society of Human Resource Management White Paper.

A Brief Overview of the Age Discrimination in Employment Act (ADEA), Jim Quirk, Society of Human Resource Management White Paper.

Walker A. Combating age discrimination at the workplace. Exp Aging Res. 1999 Oct-Dec;25(4):367-77. Interviews with Sheldon Steinhauser, human resources consultant, Sheldon Steinhauser and Associates Inc.; Laurie McCann, staff attorney, AARP Foundation Litigation; Howard C. Eglit, professor of law, Chicago-Kent College of Law, Illinois Institute of Technology.

US Census Bureau. Profile of General Demographic Characteristics 2000 and 2007. http://www.factfinder.census.gov/

Equal Employment Opportunity Commission. Age Discrimination in Employment Act. (Includes concurrent charges with Title VII, ADA and EPA) FY1997-FY2008. http://www.eeoc.gov/stats/adea.html

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