Age Discrimination

No matter how talented or experienced one employee may be over another, workplace history has demonstrated more than just a few times that the younger candidate is often the one to win the promotion. Age discrimination has become more than a minor inconvenience throughout the twentieth century; indeed, the issue has become such a hot potato within the workplace that laws have been forced into existence as a means by which to address the problem.
In order to help protect those who stand to be singled out and let go because of the unfairness of ageism, the Age Discrimination in Employment Act (ADEA) was designed with the older employee in mind. The issue at hand is that companies are not willing to look beyond their aging workforce, choosing instead to push them out of the technological loop rather than attempting to incorporate them as valuable assets. In our culture, the general perception is that with youth comes energy, imagination, and innovation. With age comes decreasing interest, lack of innovation and imagination, and a lessening of the quality of the person (Bennett, 2001, p. 410-411).
Job seekers are reporting age discrimination beginning as early as the mid-thirties. How can this be addressed? What options are there for those of us considered "old" by hiring managers and companies? The biggest issue, and one which is hard to address, is the perception that older workers are not as capable or as qualified as younger counterparts.
Age discrimination continues to damage our society, reducing both the incomes and the self-confidence of millions of Americans. A Harris survey, conducted in 1989, reported that one million workers aged 50 to 64 believed that they would be forced to retire before they were ready. Most of this group, anticipating an unwanted early retirement, said they would prefer to work for years longer. Another Harris survey, conducted in 1992, found that 5.4 million older Americans--one in seven of those 55 and older who were not working at that time--were willing to work but could not find a suitable job (Administration on Aging).
Age discrimination can be obvious, such as a bank hiring a pretty, inexperienced young woman as a teller instead of an older woman with a strong background in similar jobs. But it 's the subtler forms of age discrimination that may have the most powerful effect on cutting short the productive years of Americans--the law partner who is moved to a smaller office when he passes 60, the 50-year-old professional who knows hard work won 't bring any more promotions, the vacancy filled by a younger staff member before older workers even know about it, and the new boss who makes life so miserable for the 60-year-old secretary, he inherits, that she quits.
Age discrimination is sometimes allowed to continue with surprisingly little protest because of long-held assumptions that it is right and proper for older workers to move aside to make room for younger workers who need to support families, that older workers are less competent, and that there 's no mileage in training them for new jobs.
In fact, for a variety of reasons, older workers have been leaving the labor force. The percentage of men 55 to 64 in the work force declined from 87 percent in 1950 to 67 percent in 1996, and for men 65 and older, from 46 percent to 16 percent. The percentage of women 55 and older in the work force hasn 't changed substantially because the dramatic rise in the number of women working has offset the increase in early retirements (Age Discrimination).
When age 62 arrives or earlier retirement is offered, what prompts the employee to leave--a negative work climate that sees older employees as less valuable, the desire to be free, or a belief that Social Security or a pension, plus some savings will provide a livable income? The answer is probably a combination of the three, but some employment experts think ageism plays a larger role than most people are willing to admit.
The 1967 Age Discrimination in Employment Act (ADEA) protects most workers 40 and older from discrimination in recruitment, hiring, training, promotion, pay, benefits, firing, layoffs, retirement and other employment practices. The Equal Employment Opportunity Commission (EEOC) is responsible for receiving charges of age discrimination under the ADEA, investigating them, and working to remedy the causes (Employment Law).
Financial need and career interests send many early retirees back to work. According to the Bureau of Labor Statistics (BLS), half of men aged 55 to 61 and one-quarter aged 62 to 64, who had pension income in 1993, found new jobs--in most cases, part-time employment. Many older Americans, however, can 't find a job or are too discouraged to try. About 667,000 people 55 and older were unemployed in 1993 and about half had been out of work for 15 weeks or more (Employment Law).
In the last decade, downsizing, increased use of part-time and contract employees, greater reliance on automation, and less job security have created what some researchers call a "corporate culture of expendability." In such a climate, it is the older worker who is at particular risk of losing a job. Stressful conditions in the workplace are projected to continue during a time when the number of workers 55 and older will jump from 16 million in 1996 to 22 million in 2005, and rise even higher with the aging of the baby boomers (Doyle).
Yet, a 1992 Harris survey of 400 companies found that only one in eight companies surveyed sees an urgent need to respond to the aging of the work force. Just one in three offers older workers the chance to transfer to jobs with less responsibility and only one in five offers phased retirement (Doyle).
Another 1994 survey, also of 400 companies, interviewed "Human Resources Decision Makers" and summarized the results in an American Association of Retired Persons ' (AARP) report, American Business and Older Workers: A Road Map to the 21st Century. According to the report, the personnel directors and company executives interviewed, rate older workers very highly, but believe younger managers "do not really want older employees no matter how good their skills, so what 's the point of sending them an older worker to interview" (Employment Law)?
The report said many of the "Decision Makers" believe younger managers see older workers as: "My mom and dad and do not want to boss them; knowing more than boomers do and making them look bad, less competent; hard to relate to, not part of ‘my generation, ' ‘my culture, ' and ‘inflexible, unwilling to change ' (Doyle).
From 1991 to 1995, an average of 17,000 workers annually brought age discrimination complaints to the Equal Employment Opportunity Commission (EEOC). The Commonwealth Fund report notes, however, that the EEOC has a constant backlog of charges to investigate and, due to limited resources, can pursue only a few strategically targeted court cases. The report urges Congress to provide funds and establish statutory authority for the EEOC to conduct audits and reviews of company practices to test for age discrimination in the workplace (Equal Employment Opportunity Commission).
Has Any Of These Things Ever Happened To You?
- You didn 't get hired because the employer wanted a younger looking person to do the job.
- You were passed over for training courses and then got a negative job evaluation because you weren 't "flexible" in taking on new assignments.
- You got fired or laid off because your boss wanted to keep younger workers who are paid less.
- You received undeserved negative performance evaluations and then your employer used your "record" of poor performance to justify demotion or termination.
- You got turned down for a promotion to a mid-management job, which went to someone younger hired from the outside because "the company needs new blood."
You are not alone. Although many older people feel they have blossomed in middle or old age, there are some people in our society who believe that a older persons value declines as they age. Some employers require workers to meet youthfulness or physical attractiveness standards. If these requirements exclude people 40 or over and are not equally applied to all workers, they may be illegal.
Thousands of workers 40 and over file charges of discrimination every year with their federal, state or local civil rights or fair employment practices agency to try to get equal treatment on the job (Equal Employment Opportunity Commission).
What The Law Says
Under the Age Discrimination in Employment Act, employers who have at least 20 workers are not allowed to:
- Recruit - or ask an employment agency to send - only young job applicannot s; or
- Withhold training opportunities from workers just because they are older; or
- Fire or force a worker to retire because he or she is "over the hill", or
- Allow younger workers certain benefits, such as flexible schedules, part-time work, job sharing and telecommuting, while denying such options to workers age 40 and over.
Age Discrimination: Overview
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against individuals who are 40 years old or older. The ADEA 's protections apply to both employees and job applicannot
s.
Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition or privilege of employment--including, but not limited to: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers (Equal Employment Opportunity Commission).
Covered employers
The ADEA applies to employers with 20 or more employees. It also applies to employment agencies, labor organizations and the federal government. According to the U.S. Supreme Court, however, the ADEA does not apply to state governments (Equal Employment Opportunity Commission).
Covered employees
The ADEA protects only employees or applicannot s who are aged 40 and older. For example, a 20-year-old job applicannot who isn 't hired because the employer feels he or she is too immature would not be able to file a discrimination claim under the ADEA. But be sure to check state law. Some states provide protections against age discrimination for all employees regardless of age. Other states may have a lower age for protection.
While you have to be aged 40 or older to file a claim under the ADEA, you may still have a discrimination claim if an employer replaced you or hired someone who was also older than 40. For example, suppose an employer fires a 60-year-old employee and replaces him or her with a 41-year-old. The 60-year-old may still have a discrimination claim even though the employer hired someone over 40 to replace him or her (Equal Employment Opportunity Commission).
Job Notices and Advertisements
The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the essence of the business (Doyle).
Pre-Employment Inquiries
The ADEA does not specifically prohibit an employer from asking an applicannot 's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA (Doyle).
Benefits
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Waivers of ADEA Rights
At an employer 's request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive (Employment Law). References:

Administration on Aging. Age Discrimination: A Pervasive and Damaging Influence. Available at: http://www.aoa.dhhs.gov/factsheets/ageism.html
Age Discrimination. Don 't Work in the Dark. Available at: http://www.dol.gov/dol/wb/public/wb_pubs/age.htm.
Bennett-Alexander, D.D., & Hartmann L.P. (2001). Employment Law for Business, (3rd Edition). [University of Phoenix Special Edition Series]. Burr Ridge, IL: McGraw – Hill / Irwin.
Doyle, Allison. The Gray Ceiling. Available at: http://jobsearch.about.com/careers/jobsearch/library/weekly/aa050700b.htm?rnk=r8&terms=age+discrimination.
Employment Law. Age Discrimination: Overview. Available at: http://www.mycounsel.com/content/employment/agediscrimination/?source=subsite.
Equal Employment Opportunity Commission. Facts About Age Discrimination. Availablet at: http://www.eeoc.gov

References: Administration on Aging. Age Discrimination: A Pervasive and Damaging Influence. Available at: http://www.aoa.dhhs.gov/factsheets/ageism.html Age Discrimination. Don 't Work in the Dark. Available at: http://www.dol.gov/dol/wb/public/wb_pubs/age.htm. Bennett-Alexander, D.D., & Hartmann L.P. (2001). Employment Law for Business, (3rd Edition). [University of Phoenix Special Edition Series]. Burr Ridge, IL: McGraw – Hill / Irwin. Doyle, Allison. The Gray Ceiling. Available at: http://jobsearch.about.com/careers/jobsearch/library/weekly/aa050700b.htm?rnk=r8&terms=age+discrimination. Employment Law. Age Discrimination: Overview. Available at: http://www.mycounsel.com/content/employment/agediscrimination/?source=subsite. Equal Employment Opportunity Commission. Facts About Age Discrimination. Availablet at: http://www.eeoc.gov