Age discrimination harms everyone, but it’s hard to prove
Tuesday, August 06, 2019
You may think you have a realistic understanding of discrimination against older workers, but it’s likely you underestimate how widespread age discrimination in employment actually is. Despite a federal law against it, it’s both increasing and hard to prove.
How Prevalent Is Age Discrimination in the Workplace?
It’s widely known that some industries routinely discriminate against older workers — Hollywood, for example, where women actors’ earnings peak around the age of 34 and decline rapidly thereafter. But many other workers in the film and television industries — screenwriters, for example — also experience age discrimination early on, often around the age of 40.
“Front-facing” jobs in other industries that involve in-person contact with customers often go to younger workers whose presence suggests that the company is forward-looking and innovative. Contrary to its reputation for liberal political and social ideas, Silicon Valley is another prominent offender.
But it’s less well-known that this kind of discrimination exists in nearly every industry in America. It’s not just that getting a job gets harder after age 50; it’s not easy to keep the one you’ve got.
A late 2018 Urban Institute study concluded that over 50% of workers past the age of 50 will leave their jobs involuntarily, usually after a number of “signals” that suggest it’s time to leave, among them being passed over for promotion; receiving job title and salary downgrades; being required to report to younger workers they’ve previously trained; or being transferred to remote and/or less desirable locations.
But Isn’t There a Law Against That?
The 1967 Federal Age Discrimination in Employment Act forbids employers with 20 or more employees and co-workers in those companies from discriminating against anyone age 40 and older. Several states have passed related acts, some of them, like California’s even more stringent than federal law.
For several reasons, however, proving age discrimination is difficult. Simply because you may have been replaced with a younger, less-experienced worker, even someone you’ve trained, doesn’t prove you’ve been discriminated against.
You (or your attorneys) have to demonstrate an actual pattern of discrimination, which generally requires written or audio documentation. Obviously, keeping your smartphone on Record in the workplace isn’t the best way to make yourself irreplaceable.
Similarly, getting fired doesn’t prove age discrimination either. Most companies can present copious documentation showing why your firing had nothing to do with age.
Frequent defensive reasons are insubordination, tardiness, inability to function according to the requirements of the job, especially the ability to learn new digital and online skills and non-discriminatory general downsizing. Most employers, if older employees persist, may finally offer some kind of termination package. Accepting nearly always requires signing a waiver of your right to sue.
And the Bad News Is…
It would be nice to believe that age discrimination in employment is gradually decreasing. A substantial demographic shift toward older voters suggests why this might be a reasonable conclusion.
In 2015, about 15% of the U.S. population was 50 or older. By 2060, nearly a quarter of Americans will be 50 or older. This change forecasts an increasing number of voters with an interest in reducing discrimination against older workers. It’s in the interest of members of Congress and, ultimately, whoever may be President, to do something helpful for these aging workers, who constitute an increasingly large voting bloc.
Unfortunately, that’s not what’s happening. Age discrimination complaints filed with the U.S. Equal Employment Opportunity Commission, particularly by older women and minorities., have consistently increased from 2008 through 2017.
It could be argued that this doesn’t so much represent an increase in discrimination as an increasing awareness of what constitutes discrimination and an increasing willingness to oppose it. But several scholarly studies, among them the decidedly wonky "Age Diversity, Age Discrimination Climate and Performance Consequences — a Cross Organizational Study," take these changes in the emotional workplace climate into account, and come to the opposite conclusion: that as the number of aging workers increases, so does a climate of discrimination against them.
Simply put, increases in discrimination suits fairly represent an increasing incidence of workplace discrimination against older workers, including disparagement, negative stereotyping, bullying, and, of course, simply finding themselves out of a job.
In a following article in this occasional series on aging and how our society deals with it, I’ll explain why a series of 21st-century court decisions make it even more difficult for workers to prevail in age discrimination suits. In the final article in the series, I’ll detail the far-reaching economic and social consequences of these trends.
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