Age discrimination still thrives in America (2023)

Age discrimination still thrives in America (1)


In Spanish| About 35 percent of the US population today is aged 50 or older. But in 2018, the Equal Employment Opportunity Commission, the nation's labor inspectorate, released a damning special report on age discrimination among older Americans. It concluded that although 50 years have passed since Congress banned the practice, "age discrimination remains a significant and costly problem for workers, their families and our economy."

Victoria Lipnic, EEOC Vice ChairAt the time, he likened it to bullying: "Everyone knows it happens to workers in all kinds of jobs every day, but few report it. It's an open secret."

In the same year, aAARP poll foundthe:

  • Almost one in four workers aged 45 and over has had negative comments about their age from supervisors or colleagues.
  • Approximately 3 in 5 older workers have seen or experienced age discrimination in the workplace.
  • 76 percent of these older workers see ageism as a barrier to finding a new job; Another report found that more than half of these older workers are being forced out of long-term jobs prematurely, and 90 percent of them will never earn as much again.

Diane Huth's story is not unusual. "I'm 69, so I can't work," says Huth, who lives in San Antonio. “I've worked in American business for well-known brands for over 40 years. But I can't get a job, the same job I had 15 years ago. Because of all the screening mechanisms, I don't even get an interview for this job. I'm too old; No one takes me seriously for a job my age, even at things I've excelled at."

Such rampant discrimination has an enormous domino effect:

  • Twenty-nine percent of US households headed by someone 55 years of age or older have no retirement or retirement savings, meaning they have to keep working or rely on Social Security to survive. But if the only work available to them is unskilled labor and minimum wage, what does the 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 than their peers who don't feel useful, according to a 2007 studyGerontological Journals.When the business world suddenly drops 30+ years of working life altogether, the impact on your health and longevity is undeniable.

Paradoxically, most companies do not seem to understand that older workers have in-depth knowledge and experience that is worth paying for, that is not easy to replace, and that can be used in many different ways.

"People are leaving companies today with a huge amount of intellectual property on their heads," said Paul Rupert, founder and CEO of Respectful Exits, a nonprofit consultancy that raises corporate awareness of gender discrimination. "They know things that are essential to the success of the company, and if that knowledge isn't captured and passed on to the next generation, the company loses a lot of capital and will eventually pay a price."

How did we get to this point? And how can we fight this widespread ageism?

To answer these questions, theAARP-Newsletterasked me to independently research ageism in the workplace to determine why it is so prevalent and what can be done about it, to provide both a snapshot and an introduction to the state of ageism in America. That I have learned.

Ageism: an accepted bias

If you haven't felt the pinch of ageism yet, trust us, you will. When you apply for a job online, there is a good chance that a selection algorithm will automatically disqualify you based on your age. If you're an older employee, you're likely to put up with your share of age-related comments and jokes. And when you're looking for a promotion or going to an interview, you might feel compelled to touch up your gray hair, dress a little younger, and pretend technology is your best friend.

That's becauseAge discrimination in the workplace happens every day in the United States., and is tolerated or, worse still, not recognized for what it really is: discrimination, pure and simple.

"Ageism is so pervasive that people don't even realize it's illegal," said Kristin Alden, a labor rights attorney with Alden Law Group in Washington, D.C.

In my reporting, it was immediately clear that ageism, like other prejudices and discriminatory practices, takes many forms. In the workplace we find illegal age discrimination in three main areas:

  • Recruitment and Hiring, if younger applicants are preferred solely because of their age.
  • prejudice at workwhen older workers receive fewer opportunities for training, promotions and rewards, or are harassed.
  • termination, when a company “renews” its workforce or cuts the budget by selecting executives for layoffs or encouraging them to retire.

Paul Rupert of Respectful Exits makes a convincing point that the problem stems from our free enterprise roots. The dominant business model in this country is still the industrial one, where companies see employees as "human capital," he says. “It's a sad sentence, but companies see their workforce the same way they see their capital team. You buy it, you assume it will have a certain useful life, and then you discard it and replace it with a new model.”

Stories like this are typical:

"I became aware of ageism when it happened to a few people I cared about," says Patti Temple Rocks, a 38-year communications professional and the author ofI'm not done yet: it's time to talk about age discrimination in the workplace."My first reaction wasI won't let this happen to me. I will contact you fully when it is no longer relevant.I read everything I could to reinvent myself. But when it happened, I realized that everything I had thought about was wrong. I was still in my game, but I was moved to a non-essential role to make room for someone younger. I wasn't ready for my second act because I was still in the first."

"I learned tostructure my CV in such a way that my age is not apparentsays a senior engineer in his 50s who asked not to be identified. "I got calls, the phone screens worked great, but then when I went to interviews, sometimes on a company plane, I never got a reply or was told someone else got the job. Eventually I realized what they were thinking when I walked in:This guy is no spring chicken.

These stories are about as easy to find as spring chickens. Between 1997 and 2018, approximately 423,000 US workers filed age discrimination claims with the EEOC. That's about 19,200 a year and 22 percent of all workplace discrimination lawsuits. But here's something important to note: An AARP survey found that just 3 percent of older workers have ever filed a formal age discrimination complaint with a government agency or someone in the workplace, meaning there are probably hundreds of thousands more who are simply Accepting rejection, ignoring promotion refusals, resisting workplace bullying, or accepting an offer of early retirement.

The EEOC says the issue is "grossly underestimated," but there's an equally significant issue: the EEOC itself. Understaffed and tasked with fighting discrimination of all kinds, the agency simply hasn't been able to put its stick in hand to take to fight hard for older workers. More on that soon, but first some background knowledge.

ADEA and flawed laws

One of the reasons that ageism remains an issue is simply our American culture. We live in a youth-obsessed world that spent an estimated $53 billion on anti-aging products and services in 2019. Is it any wonder the companies that employ us share our resistance to aging? Meanwhile, the advent of technology that didn't even exist until many older people were already in their careers has created an attitude bias, with many companies assuming (often wrongly) that younger workers will be more tech-savvy. And we, as older workers, sometimes unintentionally reinforce these prejudices. When you joke about "maturity moments" or loudly complain about kids using social media instead of phones, you're promoting the perception that the mindsets and abilities of the old and the young are different. .

Overshadowing these social factors, however, is the fact that the nation's most important federal statute, the Age Discrimination in Employment Act of 1967 (ADEA), was substantially amended by the US Supreme Court in 2009.

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The history of the legislation dates back to the creation and passage of the Civil Rights Act 1964 and in particular Title VII which made it illegal for employers to discriminate on the basis of race, colour, religion, sex and national origin.

Notice something missing in the last sentence?

An amendment to include age discrimination as one of the protected categories in Title VII failed. Instead, Congress established a commission to study the problem of age discrimination, and this commission found without a doubt that discrimination in the workplace was rampant at the time (mid-1960s), with 50 percent of employers using age limits to determine Deny jobs to workers aged 45 and over. this reportled to the passage of ADEA in 1967. The aim was to "promote the employment of older people on the basis of ability rather than age [and] prohibit arbitrary age discrimination...".

When he signed the ADEA Act into law on December 15, 1967, President Lyndon B. Johnson commented: “This Act does not require employers, unions and employment agencies to prefer one person between the ages of 40 and 65 to another person. It takes a simple question that needs to be answered fairly: Who has the best qualifications for the job?

Fifty-two years later, the question remains: Are today's jobs for the best-skilled workers, regardless of age? Unfortunately, in many cases the answer is no. Part of the problem is the law itself. Although ADEA was intended to serve as the age-based equivalent of the Civil Rights Act, it has never accorded age the same legal respect as race, gender, or religion, and as a result, in part, its idealistic goals have never been achieved.

Two key factors made it weaker than Title VII from the start.

lack of damage:Even if you win an age discrimination lawsuit against an employer, and even if you prove that the discrimination was intentional, the maximum you can recover if you win is double your lost salary plus attorneys' fees. Nothing against pain and suffering. So unless a company faces a major class action lawsuit, it has little to lose. In fact, many attorneys do not even accept individual age prejudice complaints for this reason. "This is not the case with other forms of discrimination," explains attorney Alden. "On the basis of race, sex, national origin, disability and all others, if successful, the worker is entitled to damages and attorneys' fees."

“Reasonable factors” are considered in the employer's defense: ADEA identified two types of age discrimination: intentional (“unequal treatment”) and unintentional (“unequal impact”). The latter is defined as an employment policy that appears neutral but has a negative impact on older workers. An example might be a company that decides to fire all of its vice presidents. There's nothing wrong with that on the surface, but since vice presidents are often older people, older workers would be hit the hardest. Discrimination on the basis of differential effects is permitted under the ADEA if it is based on “reasonable factors other than age”. All a company would have to do to avoid age discrimination lawsuits is prove that the layoffs were financially necessary.

All that said, although the ADEA is imperfect, it did offer protections from age discrimination to older workers in the US.

But then the law was reviewed by the Supreme Court, and its rulings further weakened the protections it afforded older workers. First, the court confirmed and expanded the loopholes in damages and reasonable factors. 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 his retirement plan was awarded. The company argued that his dismissal was based on cost savings, not age, and the court agreed. Since theRabbitsThis ruling was invoked to narrow the scope of ADEA and allow for arbitrary actions based on inaccurate or stigmatizing age stereotypes.

Then came 2009Grossv.FBL Financial Services Inc.,in which the Supreme Court essentially gutted ADEA. Jack Gross, 54, was transferred from his position as Head of Claims at FBL in 2003. His successor was in his early 40s. The following year he sued for age discrimination and the case ended up in the Supreme Court. It stipulated that, in order to prove age discrimination, it had to be shown that age was the decisive factor. In other words, even if you show that your employer intentionally discriminated against you because of your age, if that wasn't the most important factor in your actions, you don't have a case. also theRoughThe decision placed the burden of proof entirely on the plaintiff, rather than the organization, to prove that it did not discriminate, presenting another hurdle for older workers to overcome.

the sentences in itRoughand other cases have not escaped the attention of American companies. This was announced by a Wall Street recruiterAARP-Newsletterthat age discrimination is increasing in the financial sector. "If companies know they can get away with something, they will," he says. "It's like a sequel toThe Simpsonswhere Mr. Burns happily rubs his hands and says, 'Let's get rid of these old people and save a lot of money!' ”

Other companies appear to discriminate against seniors in their hiring practices. The AARP Foundation, which files age discrimination lawsuits that are expected to set important precedents, is filing a lawsuit against accounting firm PricewaterhouseCoopers. The plaintiff, Steve Rabin, then 50, was rejected in his offer for an associate position at PwC. At the time, he had an MBA and more than 10 years of accounting experience. The complaint alleges that a PwC executive asked Rabin if he could "fit in" with younger employees and made other age-related, somewhat derogatory comments. More than 3,000 plaintiffs have joined Rabin in a class action lawsuit against PwC. The company denies any wrongdoing, arguing that the plaintiffs "did not provide a reliable and verifiable way to determine who met the minimum qualifications."

It should be noted that most states also have age discrimination laws, some more stringent than federal laws; some weaker. California, for example, unlike ADEA, allows compensatory and punitive damages, and New Jersey specifically allows discrimination against workers 70 years of age or older. The former may be why California has seen almost three times as many ailments of old age in just a few short years. Discrimination reported by its residents to the EEOC. Some states have a lighter burden of proof, and federal law generally applies to employers who are not covered by federal law, e.g. B. Companies with fewer than 20 employees. AARP is actively trying to improve state age discrimination laws, most recently in Connecticut, Oregon and New Jersey.

Corporate perspective on age bias

Frank Cania, President of HR Compliance Experts, believes that HR departments often view age discrimination as equal to other types of discrimination in the workplace, but that HR is not as aware of this as it should be. Although several states have recently passed legislation requiring employers to provide annual sexual harassment training, he says there are no similar laws or mandatory programs that deal solely with age discrimination. “The average HR person would say, 'Oh yeah, that's definitely a problem; it needs to be addressed,'” he explains. "But then they might post a job ad with terms like 'fast, energetic, tech ninja vibe,' or 'we work hard and party harder.'"

Not surprisingly, tech companies are among the biggest age discriminators. With Facebook CEO Mark Zuckerberg's famous statement in 2007 that "young people are just smarter," Silicon Valley has become a symbol of youth work culture. According to a 2016 report by Statista, the average median age of employees at 17 major tech companies was 32, compared to 42 for the entire US workforce — that doesn't seem like a coincidence. 2019,Google agreed to pay $11 millionto resolve complaints from more than 200 job applicants who said they had been discriminated against because of their age.

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Older tech companies aren't immune to the problem either. A 2018 investigation by ProPublica claims soIBM deliberately staged the dismissalby an estimated 20,000 employees over 40 over a five-year period. "By making these cuts, IBM has violated or circumvented US laws and regulations designed to protect future professionals from age discrimination," the article reads.

The EEOC is investigating these allegations and a class action lawsuit has been filed. Whether the company will ever be held accountable remains to be seen. A labor counselor, who requested anonymity, told thatAARP-Newsletterthat IBM's strategy was "brilliant" and stated that supervisors and lawyers were aware of how difficult it was to prosecute ageism successfully and had made the best of it. In response to the allegations in that lawsuit and several individual lawsuits, IBM told Bloomberg last year, "We've reinvented IBM over the past five years to focus on higher-value opportunities for our customers. The company hires 50,000 people every year.”

EEOC: A guard dog loses its bark

The EEOC is meant to be our police force in all of this. Their job is to enforce federal laws that protect employees or job applicants from all forms of discrimination in the workplace. His mandate is also a managerial one: he is tasked with conducting investigations when warranted and being the general advocate for workers' rights.

But when it comes to ageism, the EEOC struggles to keep up and push. An analysis ofWashington Postfound that of a total of 205,355 age discrimination complaints filed with the agency between 2010 and 2017, only 1 percent resulted in a finding of discrimination. That alone is not decisive: the vast majority of these complaints may be unenforceable.

But the numbers seem to indicate that the EEOC has not offered enough help in this area. In fact, the organization says it filed just 10 age discrimination lawsuits in 2018. That's a tiny number compared to the disability discrimination (84) and sexual harassment (41) cases she filed this year. Considering how difficult it is for a person to file a complaint, the average 8 months it takes for any type of resolution, and the small amount of compensation (if any), one has to wonder if it's even worth the effort it. the sadness.

Cathy Ventrell-Monsees is Attorney and Senior Counsel to the EEOC. She acknowledges the numbers, but explains that the agency is trying to be strategic. This means emphasizing tools such as mediation and settlement, and only taking cases with the greatest potential impact to court. “For example, hiring is a big priority for us right now,” he explains. "Our researchers are studying online hiring systems and algorithms that may incorporate bias into job selection criteria."

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But EEOC critics say there is more at stake than simple strategy. An examination of the online publicationVoxfound 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 fewer staff," the article reads. “At the same time, the country's labor force increased by about 50 percent to 160 million. ... In short, the EEOC cannot come close to fulfilling the mandate that Congress has given it.”

Ventrell-Monsees concedes that “age discrimination issues have become more visible as older workers stay in the labor force longer”, but counters that the EEOC has “significantly increased the agency's attention to age discrimination. She cites a 2017 public commission meeting that focused on ADEA@50, an ADEA resource website, and the 2018 State of Age Discrimination report.

While the EEOC deserves applause for these efforts, it still handles an anemic caseload in the region and has said little of substance about its plans to alleviate what it has identified as a "significant and costly problem" for older workers.

Gary Gilbert, a former chief administrative judge of the EEOC who now heads Gilbert's labor law in Silver Spring, Maryland, puts it more succinctly: "The Commission simply doesn't appreciate the level of social bias we currently have towards older workers."

This bias is found even in the federal government, the largest employer in the US, employing some 4.2 million workers, including uniformed military and postal workers. For one thing, it encourages prejudice with its mandatory retirement age for many classes of workers. For example, federal law enforcement officers must retire at 57 and air traffic controllers at 56. At this age, mental and physical abilities are said to decline. In fact, in many cases there is no science to support such specificity; these age limits are largely arbitrary.

"These regulations were designed to meet the need for, and I quote from the law, 'a vigorous young workforce,'" says John Grobe, president of Federal Career Experts, a consulting firm that advises government agencies and their employees on issues advises on retirement. "But heck, some people can lose a step at 55, and some can still be perceptive at 70."

The AARP Foundation actively combats discriminatory practices within the federal government. Last fall, the foundation's lawyers filed an amicus curiae brief in the Supreme Court case.Babv.Wilkie,arguing that the lower court violated the letter or spirit of ADEA by requiring federal employees filing age discrimination claims to have an extremely high standard of proof.

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"Even a single incident of age discrimination in government is worrying," said Dara Smith, lead attorney for the AARP Foundation. "Private sector employers look at this and say, 'Well, if the federal government can get away with it, maybe we can too.' They should have a higher standard."

Work towards solutions to age discrimination

Although there is a tendency to view age discrimination in the workplace as an us-versus-them issue, general hostility towards employers will not solve anything. While there are certainly companies that deliberately discriminate against older workers, most organizations are simply unaware of their age bias because it is so ingrained in our culture. A 2015 PricewaterhouseCoopers survey of 1,322 CEOs in 77 countries found that while 64% had a diversity and inclusion strategy at their company, only 8% of those plans took age into account. “We must work to adapt employer practices to both the 21st century and the longevity we have been blessed with,” says Rupert.

"It's not just about older workers reinventing themselves," adds Patti Temple Rocks, the communications expert who lost her job to a younger colleague. "It's also about companies reinventing themselves to be more welcoming and inclusive."

However, Rupert, Rocks and other experts we spoke to all agree that employees also need openness, flexibility and creativity, especially when it comes to the last chapter of our career. They recommend some strategies for older workers to find out if it fits their situation and comfort zone.

First, talk to your employer about your future. "For all sorts of reasons, that conversation isn't happening in most organizations right now," says Rocks. “Employees don't feel comfortable saying, 'I'm thinking about retiring in X years' because that marks them as demotivated. Likewise, employers don't know how to talk about it because they're uncomfortable or afraid of being sued."

But remember, like all workers, employers need to do a cost-benefit analysis of older workers, says Jack Kelly, founder and CEO of, a social media platform dedicated to connecting job seekers with recruiters. "It's not just age," he explains. "It's not like they're like, 'Hey, Jack, you're an old dude; you eat Werther's sweets; You're wearing a sweater and slippers, we don't want you here. It's more of a convergence of being a certain age and making a certain amount of money."

That's why you need to emphasize and even quantify its value. The trick to avoiding a layoff related to your "high" salary is to remain a revenue generator or value creator and make sure your boss recognizes this. "If you bring money, they keep you here until you're 100," says Kelly.

Another strategy:Think of semi-retirement; It's rare so far, but reasonable and on the rise. "When a valued employee is willing to stay and add their wisdom to 25 percent less pay and fewer days in the office, it's a win-win," says Rocks.

And of course, be confident in what you can and make a contribution. For example, don't be fooled by the age myths that got us here: that older workers aren't as smart as younger workers, less productive and not as reliable, not as digitally savvy, and more testy and difficult. Polls and studies refute all of these myths. In fact, after reviewing all the research on the subject, Peter Cappelli, professor of management at the University of Pennsylvania's Wharton School, says, "All aspects of job performance improve with age. I thought the picture could be more mixed but it isn't. The juxtaposition of the superior performance of older workers and their discrimination in the workplace really doesn't make sense."

In addition to fighting these stereotypes in ourselves and others, there are also important bipartisan laws that AARP supports and that all Americans should support:Protection of Older Workers Against Discrimination Act (POWADA). Essentially, it would restore the burden of proof in cases of age discrimination to be on par with other forms of discrimination in the workplace. Unfortunately, that legislation has stalled in Congress since 2009 when theRoughDecision prompted its creation. It's time to get it going again. Contact your congressmen today, ask them how they feel about this bill and encourage them to support its passage. AARP does the same.

"Many of us spent years working and raising our families while not making waves because we wanted to keep our jobs," concludes HR Compliance Experts' Cania. “While others have raised their voices loud and clear on important issues like discrimination and harassment, as women have through the #MeToo movement, it seems we, as older Americans, have yet to find the catalyst for our movement against ageism. . Our voices need to be heard loud and clear, and often.”

Indeed, if we want to make strides against age discrimination in the workplace and protect our financial security (and dignity!), it is time to speak out and publicize America's dirty secret.

Joe Kita has been an investigative journalist, book author, and magazine editor for more than 30 years and is a regular contributor to AARP publications.

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