It's time to step up and stop the last acceptable bias
by Joe Kita, AARP,
December 30, 2019
En español | About 35 percent of the U.S.
population is now age 50 or older. Yet, in 2018, the Equal Employment
Opportunity Commission — the nation’s workforce watchdog — issued a damning
special report on age discrimination against older Americans. It concluded that
even though 50 years had passed since Congress outlawed the practice, “age
discrimination remains a significant and costly problem for workers, their
families and our economy.”
Victoria Lipnic, the EEOC’s acting chair at
the time, went so far as to compare it to harassment: “Everyone knows it
happens every day to workers in all kinds of jobs, but few speak up. It’s an
open secret.”
That same year, an AARP survey found that:
·
Nearly 1 in 4 workers
age 45 and older have been subjected to negative comments about their age from
supervisors or coworkers.
·
About 3 in 5 older
workers have seen or experienced age discrimination in the workplace.
·
76 percent of these
older workers see age discrimination as a hurdle to finding a new job; another
report found that more than half of these older workers are prematurely pushed
out of longtime jobs and 90 percent of them never earn as much again.
Diane Huth’s story is not unusual. “I am 69
years old, and that means I am unemployable,” says Huth, who lives in San
Antonio. “I worked in corporate America for more than 40 years with big-name
companies in branding. But I cannot get a job, the same job I rocked 15 years
ago. I cannot even get an interview for that job because of all the screening
mechanisms. I’m just too old; nobody takes me seriously for a job at my age,
even in things I had excelled at.”
That rampant discrimination has a huge ripple
effect:
·
29 percent of U.S.
households headed by someone age 55 or older have no retirement savings or
pension, meaning they’ll have to continue working or rely on Social Security to
survive. But if the only job that remains open to them is unskilled and minimum
wage, what does their future hold?
·
Older people who don’t
feel useful are three times more likely to develop a disability and four times
more likely to die prematurely, compared with counterparts who do feel useful,
according to a 2007 study published in the Journals of Gerontology. If
30-plus years as a professional are suddenly thoroughly discounted by the
business world, the effect on your health and longevity is undeniable.
Paradoxically, what most companies do not seem
to understand is that older workers possess a depth of knowledge and experience
that’s worth paying for, is not easily replaced and can be tapped in many
different ways.
“People walk out of companies now with an
enormous amount of intellectual property in their heads,” says Paul Rupert, the
founder and CEO of Respectful Exits, a nonprofit consulting firm that’s raising
corporate awareness about age discrimination. “They know things that are
essential to the company’s success, and if that knowledge is not captured and
transmitted to the next generation, that company is losing a tremendous chunk
of capital and it’ll eventually pay a price.”
How did we get to this point? And how can we
combat such widespread age discrimination?
To answer these questions, the AARP
Bulletin asked me to independently examine ageism in the workplace to
determine why it is so prevalent and what can be done about it, to provide both
a snapshot and a primer on the state of age discrimination in America. Here’s
what I’ve learned.
Ageism: An accepted bias
AARP Is fighting age discrimination
AARP is strongly committed to protecting older
workers from age-related bias and pushing for stronger laws and policies that
guard your rights. And we offer lots of programs to support people fighting
discrimination or trying to stay in the workplace after age 50. Here’s some of
what we do — and some links you can use to get help.
Defending your rights. AARP
Foundation attorneys are protecting older adults against age
discrimination in courts throughout the nation, including the U.S. Supreme
Court. Cases are selected especially when they are expected to establish
significant legal precedents. AARP Foundation also files briefs in many
important age-related cases.
Fighting for better laws. AARP’s policy team has been pushing hard
to pass legislation that would fix a 2009 Supreme Court decision that made it
much harder to win an age discrimination case.
Helping change state laws. AARP is championing bills in several
states to stem the tide of workplace age discrimination. Get news and alerts
about AARP’s efforts with state lawmakers.
Working with employers. Through its Employers Pledge Program (EPP), AARP works
with companies to help them understand the value of older, experienced workers.
More than 1,000 employers have signed a pledge publicly affirming that they are
committed to fighting age discrimination.
Finding a job. AARP’s Job Board is designed to help
older workers find employers committed to fighting age bias. The Job Board
includes work postings from companies that have taken AARP’s Employer Pledge.
Back to Work 50+. This AARP Foundation program provides
the training and tools older adults need to compete for today’s in-demand jobs.
Visit aarp.org/BackToWork50Plus or call
855-850-2525 to register for a workshop.
Résumé retooling. Résumés can be tailored to make it
harder for prospective employers to ignore you based on age. AARP
Resume Advisor, powered by TopResume, offers a free résumé review
for everyone and custom professional writing packages at a discount for AARP
members.
Find out more. Go to aarp.org/AgeDiscrimination for more practical
advice and resources to help workers age 50-plus deal with age discrimination.
— Michael Hedges
If you haven’t felt the pinch of ageism yet,
trust us, you will. If you apply for a job online, there’s a good chance that a
screening algorithm will automatically disqualify you because of your age. If
you’re an older employee, it’s likely you’ll bear your share of age-related
comments and jokes. And if you’re gunning for a promotion or heading into a job
interview, you may feel compelled to touch up the gray, dress a bit younger and
act like technology is your best friend.
That’s because ageism in the workplace occurs every day across America,
and it is tolerated or — even worse — unrecognized for what it truly is:
discrimination, plain and simple.
“Age discrimination is so pervasive that
people don’t even recognize it’s illegal,” asserts Kristin Alden, an attorney
specializing in employee rights at the Alden Law Group in Washington,
D.C.
What immediately became apparent in my
reporting is that, like other biases and discriminatory practices, ageism takes
many forms. In the workplace, we found illegal age discrimination in three main
areas:
·
Recruitment
and hiring, when younger
applicants are shown favor simply because of their age.
·
On-the-job
bias, when older workers
receive fewer training opportunities, promotions and rewards, or are
harassed.
·
Termination, when a company “freshens” its workforce or
trims budget by targeting senior employees for layoffs or encouraging them to
retire.
Paul Rupert, of Respectful Exits, suggests —
persuasively — that the problem emanates from our free-enterprise roots. The
predominant business model in this country is still an industrial one where
companies view employees as “human capital,” he says. “It’s a sad phrase, but
companies view their workforce the same way they view their capital equipment.
You buy it, you assume it has a certain shelf life, and then you get rid of it
and replace it with a new model.”
Stories like these are typical:
“I became aware of ageism when it happened to
a couple of people I cared about,” says Patti Temple Rocks, who has spent 38
years in communications and is the author of I’m Not Done: It’s Time to
Talk About Ageism in the Workplace. “My first reaction was, I’m
not going to let this happen to me. I’m going to be completely in touch with
when I’m no longer relevant. I read everything I could about
reinventing myself. But when it did happen, I realized everything I had been
thinking was wrong. I was still on my game, but I was being moved into a
nonessential role to make room for someone younger. I wasn’t ready for my
second act because I was still well into my first.”
“I learned to structure my résumé in ways so it’s not obvious how old I
am,” says an engineering executive in his late 50s, who asked to
remain anonymous. “I would get calls, the phone screens would go really well,
but then when I went for interviews — sometimes flown in by corporate jet — I’d
never hear back or be told someone else got the job. Eventually, I realized
what they were thinking when I walked in: This guy isn’t a spring
chicken.
These tales are as easy to find as, well,
spring chickens. Between 1997 and 2018, approximately 423,000 U.S. workers
filed age discrimination claims with the EEOC. That’s roughly 19,200 per year
and 22 percent of all workplace discrimination claims. But here’s something
important to keep in mind: An AARP survey found that only 3 percent of older
employees have ever made a formal complaint of age discrimination to a
government agency or someone in the workplace, which means there are probably
hundreds of thousands more who simply accept the job rejections, shrug off the
denials for promotion, withstand the workplace harassment or take the offer of
early retirement.
The EEOC says there is “vast underreporting of
the problem,” but there is an equally big issue: the EEOC itself. Understaffed
and charged with battling discrimination of all types, the agency has simply
been unable to take up its cudgel to fight hard for older workers. More on that
soon, but first some background.
ADEA and flawed laws
One reason ageism remains an issue is simply
our American culture. We live in a youth-obsessed world that spent an estimated
$53 billion on antiaging goods and services in 2019. Is it any wonder that our
resistance to growing old is shared by the companies that employ us? Meanwhile,
the rise of technologies that didn’t even exist until many older people were
already well into their careers has led to hiring biases in which many
organizations assume (often wrongly) that younger workers will be more tech
savvy. And we, as older workers, sometimes unwittingly reinforce these
prejudices. If you joke about having “senior moments” or complain out loud
about kids using social media rather than the telephone, then you’re guilty of
fanning a perception that the mindsets and capabilities of old vs. young are
different.
Dwarfing these societal factors, however, is
the fact that the nation’s key federal law, the Age Discrimination in
Employment Act of 1967 (ADEA), was essentially defanged by the U.S. Supreme
Court in 2009.
"I was still on my game, but was being
moved … to make room for someone younger."
— PATTI TEMPLE ROCKS, communications
professional
The history of the legislation goes back to
the creation and passage of the Civil Rights Act of 1964 and specifically Title
VII, which made it illegal for employers to discriminate based on race, color,
religion, sex and national origin.
Notice anything missing from that last
sentence?
An amendment to include age discrimination as
one of the protected categories in Title VII failed. Instead, Congress created
a commission to study the issue of age discrimination, and that commission
determined — without question — that workplace discrimination was rampant at
the time (mid-1960s), with 50 percent of employers using age limits to deny
jobs to workers 45 and older. That report led to passage of ADEA in 1967. It sought to
“promote employment of older persons based on their ability rather than age
[and] prohibit arbitrary age discrimination….”
When he signed ADEA into law, on Dec. 15,
1967, President Lyndon B. Johnson remarked: “This act does not compel employers
and labor unions and employment agencies to choose a person aged 40 to 65 over
another person. It does require that one simple question be answered fairly:
Who has the best qualifications for the job?”
Fifty-two years later, that question remains:
Are today’s jobs going to, and being performed by, the best-qualified workers,
regardless of age? Unfortunately, in many cases the answer is no. Part of the
problem is the law itself. Although ADEA was supposed to serve as an age-based
equivalent of the Civil Rights Act, it never granted age the same level of
legislative respect as race, gender or religion, and that’s why, in part, its
idealistic goals have never been achieved.
Two key factors rendered it, from its
inception, weaker than Title VII.
Lack of damages: Even if you win an age
discrimination suit against an employer — and even if you prove the
discrimination was intentional — the most you can be awarded is twice your lost
back pay plus attorney fees if you prevail. Nothing for pain and suffering. So
unless a company is facing a large class action suit, it has little to lose. In
fact, many attorneys won’t even take on individual age-bias complaints for this
reason. “This is not the situation for other types of discrimination,” explains
attorney Alden. “For race, sex, national origin, disability and all the others,
the employee, if successful, is entitled to compensatory damages and attorney
fees.”
“Reasonable factors” are considered in
employer’s defense: ADEA established two
types of age discrimination: intentional (“disparate treatment”) and
unintentional (“disparate impact”). The latter is defined as an employment
policy that seems neutral but adversely affects older workers. An example might
be a company deciding to lay off all its vice presidents. Nothing wrong with
that on the surface, but since VPs are usually senior people, older workers
would be hardest hit. Under ADEA, disparate impact discrimination is permitted
if it’s based on “reasonable factors other than age.” So all a company would
have to do to sidestep ageism claims is prove the layoffs were financially
necessary.
That all said, although imperfect the ADEA did
afford older employees in the U.S. protections against age discrimination.
But then the law came under review by the
Supreme Court, and its rulings further weakened the protections it granted to
older workers. First the court upheld and even widened the damages and
reasonable-factors loopholes. In 1993 it ruled that the Hazen Paper Co. did not
discriminate against 62-year-old Walter Biggins when it fired him a few months
before he became vested in its pension plan. The company argued that his
dismissal was based on cost savings, not age, and the court agreed. Since then
the Hazen decision has been relied on to narrow ADEA’s reach
and to permit arbitrary actions based on inaccurate or stigmatizing stereotypes
about age.
Then, in 2009, came Gross v. FBL
Financial Services Inc., in which the Supreme Court
essentially gutted ADEA. Fifty-four-year-old Jack Gross was reassigned in 2003
from his position as a claims administration director at FBL. His replacement
was in her early 40s. The following year, he sued for age discrimination and
the case ended up at the Supreme Court. It ruled that in order to prove age
discrimination, one must show that age was the determining factor. In other
words, even if you proved that your employer intentionally discriminated
against you because of your age, if it was not the most important factor in the
actions it took, you do not have a case. In addition, the Gross decision
placed the burden of proof entirely on the plaintiff, as opposed to putting the
burden on the organization to prove it didn’t discriminate, creating yet one
more hurdle for older workers to overcome.
The rulings in Gross and
other cases have not escaped the attention of corporate America. One Wall
Street recruiter told the AARP Bulletin that age discrimination
is increasing in the financial sector. “If companies know they can get away
with something, they’ll do it,” he says. “It’s like an episode of The
Simpsons where Mr. Burns is rubbing his hands together with glee and
saying, ‘We’re going to get rid of these senior people and save lots of
money!’ ”
Other companies seem to discriminate against
senior people in their hiring practices. AARP Foundation, which files age
discrimination suits expected to establish significant legal precedents, is
pursuing a case against PricewaterhouseCoopers, the accounting firm. The
plaintiff, Steve Rabin, then 50, was rebuffed in his effort to obtain an
associate position at PwC. At the time, he had an MBA and more than 10 years of
experience in accounting services. The complaint asserts that a PwC manager
asked Rabin whether he’d be able to “fit in” with younger employees and made
other somewhat derogatory age-related comments. More than 3,000 other
plaintiffs have joined Rabin in a class action suit against PwC. The company
denies any wrongdoing, arguing that the plaintiffs have failed to offer “some
reliable and verifiable way to identify who met the minimum
qualifications.”
It should be noted that most states also have
laws against age discrimination — some are stronger than federal law; some
weaker. California, for example, unlike ADEA, allows for both compensatory and
punitive damages, and New Jersey explicitly permits employment discrimination
against employees over age 70. The former may be why, in some years, California
has seen nearly three times as many complaints of age discrimination than its
residents report to the EEOC. Some states have lower burdens of proof, and
state laws usually cover employers that the federal law does not, such as
businesses with fewer than 20 employees. AARP is actively trying to improve
state age discrimination laws, most recently in Connecticut, Oregon and New
Jersey.
The company perspective on age bias
Frank Cania, president of HR Compliance
Experts, believes that ageism is often considered by human resource departments
as being on par with other types of workplace discrimination but that HR
personnel are not as aware of it as they should be. Although a number of states
have recently passed laws requiring employers to provide annual sexual
harassment training, he says there’s no similar legislation or mandated
programs that exclusively target ageism. “The average HR person would say, ‘Oh,
yeah, that’s definitely a problem; it needs to be addressed,’ ” he explains.
“But then they may place a job ad using terms like ‘fast-paced environment,
energetic, technology ninja’ or ‘We work hard and party harder.’ ”
Unsurprisingly, tech companies are some of the
biggest age discriminators. With Facebook CEO Mark Zuckerberg famously
declaring in 2007 that “young people are just smarter,” Silicon Valley has
become a poster child for the youth work culture. According to a 2016 report by
Statista, the average median employee age at 17 top tech companies was 32,
compared with 42 for the total U.S. workforce. That doesn’t appear to be a
coincidence. In 2019, Google agreed to pay $11 million to
settle the claims of more than 200 job applicants who said they were
discriminated against because of their age.
Older tech companies are not immune to the
problem. A 2018 ProPublica investigation alleges that IBM deliberately engineered the dismissal of
an estimated 20,000 employees over age 40 in a five-year period. “In making
these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to
protect later-career workers from age discrimination,” the article asserts.
The EEOC is looking into these charges, and a
class action suit has been filed. But whether the company will ever be held
accountable remains to be seen. One workplace consultant who requested
anonymity told the AARP Bulletin that IBM’s strategy was
“brilliant,” explaining that its supervisors and attorneys were exquisitely
aware of how difficult it is to successfully prosecute age discrimination, and
they took full advantage of that. Last year, in response to the allegations in
that suit and several individual suits, IBM told Bloomberg: “We have reinvented
IBM in the past five years to target higher value opportunities for our
clients. The company hires 50,000 employees each year.”
EEOC: A watchdog loses its bark
The EEOC is supposed to be our police force in
all this. Its job is to enforce federal laws that protect employees or job
applicants from all types of workplace discrimination. Its mandate is also one
of leadership: It’s charged with initiating investigations when warranted and
being the overall champion of worker rights.
But when it comes to age discrimination, the
EEOC is struggling to keep up, and to bear down. An analysis by the Washington
Post found that of 205,355 total age discrimination complaints filed
with the agency from 2010 to 2017, just 1 percent resulted in a finding of
discrimination. That alone is not dispositive: It’s possible that the vast
majority of these complaints are not actionable.
But the numbers seem to tilt toward a finding
that the EEOC has not been offering enough help in this realm. Indeed,
according to the organization’s own data, it brought only 10 age discrimination
suits in 2018. That’s a minute number compared with the disability (84) and
sexual harassment (41) discrimination cases it brought that year. When one
considers how difficult it is for an individual to file a complaint, the 8
months, on average, it takes for any sort of resolution, and the paltriness of
the compensation (if any), you have to wonder whether the hassle is even worth
it.
Cathy Ventrell-Monsees is an attorney and
senior adviser at the EEOC. She acknowledges the numbers but explains that the
agency is trying to be strategic. This means emphasizing tools such as
mediation and settlements and bringing to court only those cases with the
greatest potential impact. “For example, hiring is a big priority for us right
now,” she explains. “Our researchers are looking at online hiring systems and
algorithms that can incorporate biases in the job-selection criteria.”
"The EEOC has significantly elevated the
attention the agency gives to age discrimination issues."
— CATHY VENTRELL-MONSEES, EEOC senior adviser
But critics of the EEOC say there’s more at
work than simple strategy. An investigation by the online publication Vox found
a critical lack of resources at the EEOC. “It has a smaller budget today than
it did in 1980, adjusted for inflation, and 42 percent less staff,” the article
stated. “At the same time, the country’s labor force increased about 50
percent, to 160 million. … The EEOC, in short, can’t come close to fulfilling
the mission Congress gave it.”
Ventrell-Monsees concedes that “age
discrimination issues have become more visible as older workers remain in the
workforce longer” but counters that the EEOC has “significantly elevated the
attention the agency gives to age discrimination issues.” She cites a public
commission meeting in 2017 focused on the ADEA@50, a web page of resources on
ADEA, and the 2018 “State of Age Discrimination” report.
While the EEOC is to be applauded for these
efforts, it still handles an anemic caseload in the area and has said little of
substance about its plans to alleviate what it identified as a “significant and
costly problem” for older workers.
Gary Gilbert, a former EEOC chief
administrative judge who now heads Gilbert Employment Law in Silver Spring,
Maryland, puts it more succinctly: “The commission is just not appreciating the
degree of societal bias we have against older workers at this time.”
That bias can even be found within the federal
government, which is the largest employer in the U.S., with roughly 4.2 million
workers, including uniformed military and postal employees. For one, it
encourages bias with its mandatory retirement ages for many classes of
employees. For example, federally employed law enforcement officers must retire
at age 57, and air traffic controllers at 56. The assumption is that physical
and mental abilities depart at those ages. In fact, in many cases there’s no
science to support such specificity; these age limits are largely
arbitrary.
“Such regulations were designed to meet the
need for, and I quote from the law, ‘a young and vigorous workforce,’ ” says
John Grobe, president of Federal Career Experts, a consulting firm that advises
government agencies and their employees about retirement. “But, hell, some
people might lose a step at 55, and some might still be sharp as a tack when
they’re 70.”
AARP Foundation is actively fighting
discriminatory practices within the federal government. Last fall, Foundation
attorneys filed an amicus brief in the Supreme Court case Babb v. Wilkie, arguing
that the lower court, by requiring an extremely high standard of proof from
federal employees making age discrimination claims, has not complied with the
letter or spirit of ADEA.
“Even a single incidence of age discrimination
in government is worrisome,” says Dara Smith, a senior attorney at AARP
Foundation. “Private-sector employers see that and say, ‘Well, if the federal
government can get away with it, maybe we can, too.’ They should be held to a
higher standard.”
Working toward solutions for age discrimination
Although the tendency is to view age
discrimination in the workplace as an us-versus-them issue, general hostility
toward employers isn’t going to solve anything. While there certainly are
companies discriminating against older workers deliberately, most organizations
are simply unaware of their age biases because they’re so ingrained in our
culture. A 2015 PricewaterhouseCoopers survey of 1,322 CEOs in 77 countries
found that while 64 percent had a diversity-and-inclusion strategy at their
company, only 8 percent of those plans included age. “We need to work to bring
employer practices in line with both the 21st century and the longevity we’ve
been blessed with,” says Rupert.
“This isn’t entirely about us older workers
reinventing ourselves,” adds Patti Temple Rocks, the communication expert who
lost her job to a younger coworker. “It’s also about business reinventing
itself to be more welcoming and inclusive.”
Still, Rupert, Rocks and other experts we
spoke with agree that openness, flexibility and creativity are needed from
employees as well, especially when it comes to the final chapter of our
careers. They recommend a few strategies for older workers to explore if it
fits their situation and comfort zone.
First, talk about your future with your
employer. “For all sorts of reasons, that conversation is not happening right
now at most companies,” says Rocks. “Employees don’t feel comfortable saying,
‘I’m thinking about retiring in X number of years,’ because that marks them as
not being committed. Likewise, employers don’t know how to talk about this
because they’re uncomfortable or afraid of getting sued.”
But remember, as with all employees, employers
have to do a cost-benefit analysis of older workers, says Jack Kelly, founder
and CEO of WeCruiter.io, a social media platform to connect job seekers with
recruiters. “It’s not just age,” he explains. “It’s not like they say, ‘Hey,
Jack, you’re an old guy; you’re eating Werther’s candies; you’re wearing
sweaters and slippers — we don’t want you around.’ It’s more the convergence of
being a certain age and making a certain amount of money.”
Which is why you should emphasize, and even
quantify, your worth. The trick to avoiding a layoff linked to your “high” pay
is continuing to be a revenue producer or value creator and making sure your
boss realizes that. “If you’re bringing in money, they’ll keep you around until
you’re 100 years old,” says Kelly.
Another strategy: Consider phased retirement; it’s rare so far,
but sensible and on the rise. “If a super-valuable employee is willing to stay
on and contribute their wisdom at 25 percent less pay and fewer days in the
office, it’s a win-win situation,” says Rocks.
And, of course, stay confident in what you can
and do contribute. For example, don’t fall for the ageist myths that brought us
to this point—that older workers aren’t as sharp as younger workers, they are
less productive and not as reliable, they aren’t as digitally savvy, and they
are more ornery and difficult. Surveys and studies refute all of these myths.
Indeed, after examining all the research on this topic, Peter Cappelli, a
professor of management at the Wharton School of the University of
Pennsylvania, says, “Every aspect of job performance gets better as we age. I
thought the picture might be more mixed, but it isn’t. The juxtaposition
between the superior performance of older workers and the discrimination
against them in the workplace just really makes no sense.”
Beyond fighting these stereotypes in yourself
and others, there’s also an important piece of bipartisan legislation that AARP
endorses and every American should get behind: Protecting Older Workers Against
Discrimination Act (POWADA). Essentially, it would restore the
burden of proof for age discrimination cases so they would be on a par with
other forms of workplace discrimination. Unfortunately, this legislation has
been mired in Congress since 2009, when the Gross decision
spurred its creation. It’s time to get it moving again. Contact your members of
Congress today, ask where they stand on this bill, and encourage them to
support its passage. AARP is doing the same.
“A lot of us spent years working and raising
our families during a period when you didn’t make waves because you wanted to
keep your job,” concludes Cania, of HR Compliance Experts. “While others have
made their voices heard loud and clear on important issues like discrimination
and harassment — such as women through the #MeToo Movement — we, as older
Americans, don’t appear to have yet found the catalyst for our movement against
age discrimination. Our voices need to be heard loud and clear, and often.”
Indeed, if we’re to make any progress against
age discrimination in the workplace and protect our financial security (and
dignity!), it’s time to speak up — and make America’s dirty secret
public.
Joe Kita has been an investigative journalist,
book author and magazine editor for over 30 years and is a frequent contributor
to AARP publications.
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