Older workers can be threatened, made miserable and bullied in
the workplace
by John Rosengren, AARP, December 30, 2019
En español | When people think of age
discrimination, they usually envision workers fired, denied promotions or never
hired simply because of their age.
But
what if it’s not your livelihood at stake, but more your professional identity
and self-worth? What if you are bullied, made miserable or feel threatened by
remarks or actions on the job that focus on your age?
Liz
DiMarco Weinmann can tell you. She was in her 50s, working in Washington, D.C.,
for a public affairs company when, in a meeting with an important — and younger
— client, she briefly forgot the name of a spokesperson. “This man started
swearing and cursing at me and saying, ‘I am sick and tired of you not having
your young staff here who really knows what’s going on,’ as if I were senile,”
she recalls. “He took the papers that were in his hands and threw them at me
from across the room.”
When
Weinmann reported the episode to her manager, the boss compounded the outrage
by telling her that if the company lost the account, it’d be because she
couldn’t remember things. “It was totally despicable,” she recalls. “That
experience was the closest I’ve ever come to thinking to myself that I would
just roll up and never work again.”
Age
harassment, whether it is deliberately or inadvertently hurtful language, is
every bit as illegal as other forms of age discrimination. Yet verbal
harassment isn’t taken as seriously. And it can be particularly difficult to
get justice in the legal system if you are harassed.
“If you
come home and say, ‘I’ve been accused of calling someone an ‘old fart,’ no one
bats an eye,” says Michael Borrelli, an employment attorney with Borrelli &
Associates in New York. “Older people are the forgotten group that no one cares
about. As far as standing in society, they are totally discounted.”
Donna
Ballman, an employment attorney in Fort Lauderdale, Florida, agrees. “Older
people are getting targeted a lot” by hostile, inappropriate language, she
notes.
The
data supports that. The federal Equal Employment Opportunity Commission (EEOC)
said in a recent report that age-based harassment claims more than tripled
between 1992 and 2017. A national survey of 3,900 workers by AARP Research in
2018 found that nearly 1 person in 4 had heard a boss or a colleague make a
negative age-based remark about them.
Weinmann,
now 67, returned to New York after the incident in Washington and got an
advanced business degree. She now owns a consulting practice and advocates for
older workers. That includes talking to MBA alumni at New York University about
the age harassment they can expect to face as they get older. The language of
ageism is “pervasive” in business, she says. “People think that when you get to
a certain age, you’re not important.”
ADEA and federal laws
Part of
the reason age-biased language is so pervasive is that few employers train
workers to view negative age-based remarks as seriously as those that target
race, gender or sexual orientation.
But
more telling are the roadblocks to seeking justice. While federal law says “it
is unlawful to harass a person because of his or her age,” that same law limits
the damages victims can seek in federal court to things like back pay. In other
words, in a federal court case, you can’t be compensated for any mental anguish
caused by verbal harassment, and your employer can’t be forced to pay punitive
damages, no matter how blatant the abuse. That’s different from federal laws
covering discrimination based on race, gender, sex or disability, which allow
for compensatory and/or punitive damages.
AARP
Foundation lawyer Laurie McCann recalls a case in which an older worker’s desk
was taken away from him to force him to quit or retire so younger colleagues
could be seated. “The older worker who is standing in his office without a
desk, what are his monetary damages under federal law? None,” she says. “But he
has still suffered harassment.”
AARP
and other organizations have pushed for a change in the federal Age
Discrimination in Employment Act (ADEA) to allow for compensatory and punitive
damages, McCann says, but “we’re not seeing any progress.”
One
effective way to win an age-based harassment case at the federal level is to
prove that the employer intentionally created a work environment in which the
harassment was so severe, hostile and pervasive it would cause a reasonable
person to quit, McCann says. In legal terms, that’s called “constructive
discharge”; if your case meets this standard, you can sue for lost wages.
An
example of that is a case filed with the assistance of AARP Foundation attorneys against Ohio State University.
Two instructors, now 64 and 68, in the College of Education and Human Ecology,
alleged “an ongoing and unchecked pattern of harassing conduct” by their
supervisor, which included calling older workers “millstones” and “deadwood.”
That created “working conditions so intolerable that a reasonable employee in
either of their circumstances would have been compelled to resign,” the women
said in an EEOC complaint. Eventually, the women’s jobs were eliminated and
they were forced to retire. The EEOC found the women had faced “intentional age
discrimination” in the workplace. Facing a potentially embarrassing legal
battle, the university settled with the women for $765,000 in 2018, gave them
their jobs back and committed to conduct training sessions to prevent further
bias.
Still,
such wins are rare. Consider these recent decisions:
·
In the 2013 case William Bennis v. Minnesota Hockey Ventures
Group, the then-57-year-old Bennis said he felt he was treated poorly because
of his age, citing comments by a supervisor such as, “your eyes get worse as
you get older” and being told he didn’t need the job as much as a younger
employee. A federal district court ruled Bennis hadn’t shown a hostile
workplace.
·
Debra Fletcher, then 58, sued Gulfside Casino in 2011, saying
she was harassed by comments such as being asked if she needed a hearing aid or
glasses, or used Geritol, and coworkers bringing up the phrase “Seniors Day”
around her. A federal district court ruled that the comments were minor and
that they were not “of a level serious enough to constitute age harassment.”
·
Charles Denver Baker sued Becton, Dickinson and Co. in 2010,
saying he was called too old and slow, was told he lacked energy and
enthusiasm, and was informed by a supervisor that he didn’t want anyone over 40
on the sales staff. Baker was 61 when he sued. But he failed to convince a federal
court that his workplace environment was hostile. He appealed, but died at age
68.
When
Robin Shea, an attorney with Constangy, Brooks, Smith and Prophete turned 40,
her younger coworkers draped black crepe paper throughout her office and left a
cardboard tombstone. She thought it was funny then but now that she’s over age
60, she no longer finds humor in age-related jokes. “Because the threat seems
more real,” she says.
State age discrimination laws vary
It can
be more financially rewarding to pursue an age harassment claim in some states
than in federal court. Some states, like Hawaii and Illinois, allow age
harassment suits and permit the awarding of compensatory and punitive damages.
But state age-bias laws vary widely. South Dakota, for example, has no state
age discrimination law at all.
Even in
states with generous laws against harassing workers, a court battle can be long
and costly, and should be viewed as a last resort, experts say. But that
doesn’t mean harassment should be tolerated.
“I
would say anybody who is subject to harassment should, at the very least, talk
to their manager — assuming the manager wasn’t the one who was doing it. If
they are, go to the HR department,” McCann says. “And if they refuse to address
the behavior, the victim should consider filing a charge of discrimination with
the EEOC. It’s wrong and it shouldn’t happen.”
“Older people are the forgotten group that no one cares about.
As far as standing in society, they are totally discounted.” — MICHAEL
BORRELLI, an employment attorney with Borrelli & Associates
Employment
attorney Ballman advises employees to document the harassing conduct: Note how
you’re being treated differently than younger employees, write down any
age-related comments, and report the behavior to your human resources
department, preferably in writing. Those steps satisfy what a U.S. Supreme
Court decision requires: that you report discriminatory harassment and give
your employer the chance to remedy it.
If the
harassment continues, the next step is to consult an attorney and file a
complaint with the EEOC and/or with your state’s human relations commission.
(Find state human relations commissions at iaohra.org/PublicInformation.) The last
resort, if the situation remains unresolved after mediation, is to file a
lawsuit against the employer, Ballman says.
There
are lots of reasons people endure harassment. Some employees may fear
retaliation if they complain about a supervisor’s or peer’s conduct. They might
be ashamed or have internalized the idea that maybe they are too old, says
Brian Heller, a partner at the Manhattan law firm of Schwartz Perry &
Heller.
But not
reporting age harassment carries its own consequences. “There’s a cost to not
coming forward,” Heller says. “You’ve got to live with yourself for not taking
action in response to it. That can cause additional scars on the people who
suffer harassment.”
John
Rosengren, author of nine books, has written for more than 100 publications.
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