Age Bias Charges Are Booming
A recent Supreme Court ruling that favors employers may be short-lived.
By Martha Lynn Craver, Associate Editor, The Kiplinger Letter
September 18, 2009
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Employers had better brace for a lot more age discrimination complaints this year and next, continuing a trend that started two years ago and continues to accelerate. Charges filed with the Equal Employment Opportunity Commission (EEOC) jumped nearly 30% between fiscal 2007 and fiscal 2008. In fact, charges filed last year represented the highest volume in the history of the agency.
And it’ll get worse before it gets better. Employment experts cite two big reasons for the surge: Company layoffs during the recession and the fact that nearly 50% of the workforce is over 40, the age where the Age Discrimination in Employment Act of 1967 kicks in. “Older workers are laid off in greater numbers in an economic downturn due to stereotypes that they are not as productive and cost more,” says Laurie McCann, an attorney with the AARP Foundation.
Employers can fight back. A recent Supreme Court ruling favors firms in cases that come to trial. In Jack Gross v. FBL Financial Services Inc., the Court, voting 5 to 4, ruled that plaintiffs have to prove that age discrimination was the determining factor in their job loss, not just one of several motivating factors. That decision should make it easier for employers to defend themselves successfully in court.
But only a small percentage of charges filed at the EEOC ever make it to court -- less than 1 percent. In fact, most cases in which the EEOC finds discrimination are settled. “Most employers agree to settle out of court due to the cost and time involved in a trial, and the fact that it remains confidential,” says one EEOC staffer.
Congress may pass a bill to overturn the Gross decision. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, will hold hearings this fall to explore the impact of the decision, and he’s expected to introduce legislation soon thereafter. When the decision was announced, Miller declared that it throws out decades of precedent and congressional intent. “The Court’s ruling was unacceptable, and this Congress will work to protect all Americans’ ability to be treated fairly on the job,” says Miller.
Employers can avoid age discrimination claims by training supervisors to apply standards consistently and keep good documentation. Supervisors also should be careful about what they say, avoiding phrases such as “new blood” or “fresh ideas” that might be viewed as age related epithets. Also, establish a complaint procedure for workers who feel they have been victims of discrimination against.
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Reader Comments (5)
Posted by: Andres at 09/18/2009 09:33:57 AM
It is not surprising to hear I have personal experience with this subjectand more issues.I was under paid and not paid overtime as required and filed a suit on a employer who claimed to have sold his company only to turn it into a corp and hide behind the corp legalities and then was paid the same way by the new owner and filed a claim with the US DEPT LABOR and they settled out of court and the employer has to make payments on the amount with no more than what he failed to pay me in the first place the Gov sure talks big but then allows company's to screw the workers with no concequences for their actions,In the mean time I cannot get a job because of the references the former employer gives I lost my house my self esteem my dignity my will to survive and for what to believe in the american dream that any foriener can come here and bend over all workers and have the Gov help them get away with it I never understood the reason why postal workers resorted to workplace violence until all this happened to me,we as a society have to look and listen to the signs that are right in front of our faces nationwide people resort to violence because people listen to it and like it even though it's wrong and everybody knows it we have to change our way of thinking or it will continue to happen when we can all stop it before it gets there.I for one would not stand up for I was brought up to beleive again because I have seen nothing from anyone that could help do anything to stop it Do Their Job The US DEPT of LABOR is a waste of taxpayer money that is better spent on other things, And this is just my opinion which I still have a right to , or will they take that from me too.
Posted by: JD at 09/18/2009 01:25:58 PM
The unfortunate thing about the age discrimination issue is that it's often legitimate. I know I've always tried to avoid checkout lines at supermarkets staffed by older people because they tend to be half as fast as the teenagers. Similar logic applies in some other jobs. Then there's the cost/benefit analysis of continuing to spend on training of a worker who's retirement is just around the corner. Professional sports teams seem to be the only ones getting away with this - they are learning to cut aging stars before their skills decline rather than giving them one more big contract. The AARP may whine about "stereotypes" that they are less productive", but the stereotype is usually true. So we have a problem: As life expectancy increases, the percentage of our lives during which we are "useful" decreases. Ultimately, we need a paradigm shift towards finding jobs for older workers in which they can pull their weight. All that said, I still think someone should demonstrate decreased productivity before being fired for it, not just be fired on assumption.
Posted by: mg at 09/19/2009 08:20:30 AM
The orginization with the worst age bias is the AARP. There are millions of examples of this. For instance, if two people register at a hotel, the one who is a member of AARP gets a lower rate just because he is older.
Posted by: jgo at 09/25/2009 09:35:02 AM
"And it?ll get worse before it gets better." "Better" would be when there is less age discrimination. Of course, on principle, people should legally be able to "discriminate", but should be shamed out of doing so, and made aware that such discrimination is bad for the bottom line (and their personal wallet), not intimidated by government force.
Posted by: joan zawacki at 11/09/2009 08:20:40 PM
If employers are practicing age discrimination, they should be called on it. This economy has hit older people harder, especially since retirement accounts have lost value along with houses. The ability to be fairly hired and kept on the job is vitally important to older Americans so that many do not fall into poverty because of fixed incomes, falling securities, falling housing prices, lack of low-income housing, vanishing COLAS, threats to Social security and Medicare -- and no way to combat rising costs