Fighting age discrimination in employment was never easy. Earlier articles in this series on the challenges of aging pointed to a few significant reasons for the difficulty. Perhaps the most important obstacle is that age discrimination isn’t easy to prove.

Most companies, most recently IBM in a suit filed against it in April 2019, have developed strategies to explain away an older worker’s firing that deflect and very often defeat plaintiff challenges.

About 90% of age discrimination in employment suits never get to trial. Frequently, workers have signed arbitration agreements that keep them out of court.

Other times, workers and their lawyers are sufficiently aware of the odds against them at trial to settle, even on unfavorable terms. Historically, when age discrimination in employment suits do go to trial, they’ve been decided overwhelmingly in favor of corporate America and against workers — about 99% of the time.

As daunting as this sounds, recent significant appellate court decisions will almost certainly tilt the playing field even further toward corporate America and away from an increasing number of aging workers.

Discriminating Against Job Applicants is OK

A 2016 11th U.S. Circuit Court of Appeals precedential ruling found that just because R.J. Reynolds threw out the resumes of nearly 20,000 older applicants for a regional sales manager job, that was OK because these weren’t “workers” as the Age Discrimination in Employment Act (ADEA) of 1967 defined them. In a sharply divided ruling, the court found that no existing law specifically shielded applicants from discrimination on the basis of age.

This decision was also significant because it further called into question the rights of the increasing number of older workers in the gig economy.

Contract workers already had to show that despite their status they were, in fact, working under the specific direction of their employer in order to be protected under the ADEA. The 2016 11th Circuit decision made clear the appellate court’s belief that these protections were specifically limited to current employees.

The 2016 appeals court decision was reinforced again in 2019 by the 7th U.S Circuit Court of Appeals, which stated explicitly that the ADEA did not cover anyone who “was not a current employee.”

More Obstacles

In 2009, the Supreme Court set a uniquely high standard for intentional age discrimination, ruling that to prevail at trial, plaintiffs must prove that age was the “sole reason” for the unequal treatment.

Recently, it has been alleged in a lawsuit against Facebook that its targeting tools aimed employment ads toward younger readers and away from older workers, whose Facebook pages excluded certain employment ads.

There was never any apparent limitation to this exclusion — i.e., the employment offered was not physically demanding and could be performed by nearly everyone in the workforce. Employers whose ads were kept away from older readers included Ikea, Enterprise Rent-A-Car, and the University of Maryland Medical System.

At issue, and undecided so far in late summer 2019, is whether Facebook and other social media are shielded from ADEA suits in this area because they are only “passive conduits” and, hence, are not liable “as publisher or speaker” of the content on their sites even if the content violates the ADEA.

A ruling favorable to social media sites would make the current ADEA even less effective than it is at present. It could well be the outcome with the current conservative majority in the Supreme Court.

This is the fourth in a series on some important aspects of Aging. Earlier articles dealt with our national avoidance of the subject; the general underfunding of costs related to aging, especially a caregiving crisis; and the difficulty of proving age discrimination in employment. In a forthcoming article, I’ll broaden the focus to include the far-reaching economic implications of our failure to deal with various aspects of the rapidly aging U.S. population.