Workplace Age Discrimination Isn’t Going Anywhere, and Why We Should Do Something About It

In the last couple years, I’ve seen more than a few of my older family relatives and friends struggle to find jobs. Before they lost their jobs, they had all worked for many years–decades actually–as productive and hard-working engineers. But when the recession hit, these older workers in the tech industry were the first to go, and they are still struggling today. So I can’t help but think, despite what anyone says, there has to be some age discrimination going on here.

It’s not limited to just the tech industry either. This article in the Wall Street Journal blog discusses how job discrimination claims have increased significantly in the recent economy. And just because the recession may be almost over doesn’t mean that the issue of age discrimination is moot. As Americans are living longer and baby boomers are entering into senior years, the issue of age discrimination is more relevant than ever.

Our laws are pretty clear about age discrimination being illegal. The federal Age Discrimination in Employment Act (ADEA) forbids job discrimination against anyone over 40 years old. It applies to employers who have 20 or more employees. If so, the employer is forbidden from discriminating against an employee in any phase of employment, including job termination, hiring, promotions, wages, and so on.

On the state level, most states have enacted their own laws forbidding age discrimination. Currently, the only states without any age discrimination law in place are Arizona, Arkansas, Mississippi, North Carolina, and South Dakota.

Of course, there are situations where a company can discriminate against an older worker for his or her age. Under the ADEA, age discrimination is allowed if the employer can demonstrate that age is an essential component of the job. This might apply in a situation where a teenage clothing company would only want to hire teen models to showcase their clothes. However, this exception is construed narrowly, and the employee’s age must really have been a “bona fide occupational qualification.”

So when is age discrimination in the workplace not appropriate? Basically, it’s not appropriate when employers rely on stereotypes and assumptions concerning an employee’s age. For example, companies often refuse to hire older workers because they are “overqualified.” Now, this in and of itself is not necessarily age discrimination. If the company really believes that a candidate’s experience is not the best match for the position, then the company is free to refuse to hire the candidate. However, the company may not refuse to hire based on the assumption that the candidate might become bored with the job because he is so overqualified.

The Practical Problem

If the law is perfectly clear on this issue, then why does age discrimination seem so prevalent today? The reality is, even if you have a valid age discrimination case, it may be very difficult to prove in court. And perhaps the law (like much of politics) was designed to be this way: to appear seemingly moral on its face, but purposely fall short in execution.

Victims of age discrimination know firsthand how difficult it is to prove an age discrimination case. For one thing, employees are rarely going to have direct proof of employer misconduct. Companies never tell employees that they are being let go because of old age. Rather, companies give a myriad of other reasons for the employee’s departure. For example, they may say that the current economy is requiring them to hire a cheaper (and younger) employee. Or, companies may not terminate older employees outright, but think of other ways to get them to leave the job. So in the end, all a disgruntled employee has is just a lot of circumstantial evidence, which may not be dispositive in court, and requires a great deal of effort to collect anyway.

Furthermore, the Supreme Court recently made it even harder for employees to prove age discrimination cases. Prior to this decision, employees only had to prove that age was a factor in their discrimination case. However, the Supreme Court effectively said that to win an age discrimination suit now, the employee must prove that age was the only factor in consideration. As you can imagine, requiring this level of proof can defeat nearly all claims of age discrimination, since lots of factors are at play in any employment decision.

To me, allowing age discrimination to prevail in the workplace not only hurts individual employees, but really, hurts society in general. It is no mystery that seniors are the fastest growing population in society. Additionally, many of these seniors have no intention of slowing down, and intend to work past the traditional retirement age.

Furthermore, I believe that age discrimination is just that–discrimination. There truly is no proof that older workers are not capable of performing as well as their younger counterparts. True, younger workers may be more train-able, adapt more easily to situations or require lower salaries. But older workers have a rich amount of experience, and proven track records of dedication and a good work ethic.

I think that much of the reason seniors are overlooked at work is simply an outgrowth of a cultural phenomenon. As a culture, Americans simply don’t value older people so much, especially compared to the amount of respect seniors are given in other countries. And if our society continues to think this way, it will come back to haunt the younger generations when they inevitably age.

This last century in U.S. history was all about securing equal rights for women, and before that, African-Americans. Perhaps it is time now to give consideration to a group of people that we will all ultimately become: the elderly.