Ageism in the
workplace
By
Margaret Ann Mille
Sarasota
Herald-Tribune, August 24, 2003
Daniel P. Landry thought getting the job as a
Charlotte County animal control officer was a sure thing.
A departmental director sounded excited about his previous experience when
they spoke by phone. But Landry remembers the supervisor's face falling
when he interviewed Landry, then 54, in person.
"He mentioned, point-blank, that at this time of my life, did I
really think I would have the physical ability to make it through the
Animal Control Academy, which, by the way, there is no such thing,"
Landry said.
"I was absolutely devastated. I never felt so
old."
That was in May 1994. Landry sued Charlotte County, which had hired
someone half his age and with no experience handling animals. Seven years
later, an administrative law judge ruled in Landry's favor. The decision
is pending approval by the Florida Commission on Human Relations.
In
the meantime, he hasn't received a penny.
Employment law attorneys and other experts say
less-blatant examples of age discrimination, which are harder to prove,
will most likely continue to rise as they have since 1999.
The lagging economy and a graying work force have been prime factors in
the record-high number of age discrimination claims filed with the Equal
Employment Opportunity Commission in fiscal 2002. In the year ending Sept.
30, it peaked at 19,921.
That translates to a 14.5 percent increase compared with the previous
year. Age discrimination claims grew at a higher rate than all other types
of discrimination except for those based on religion.
Ensuring a continued climb is the fact that a growing
number of baby boomers -- people born from 1946 to 1964 -- are expected to
work past age 65.
Will the sheer volume of older employees alone breed acceptance in the
workplace and thus change employers' attitudes? Don't bet on it, says
Laurie McCann, an AARP senior attorney in Washington, D.C.
"I'm not optimistic that when they realize they need older workers
that they will see the light. It's not viewed as seriously or as wrong as
other forms of discrimination."
In fact, McCann said, discrimination based on age is the
hardest kind to prove.
Rarely is there a "smoking gun" that shows an employer's
transparent intent to discriminate. And courts are often quick to dismiss
age-related comments as stray remarks.
Also, not everyone with legitimate cases pursues them.
"Many people see the futility of challenging it," McCann said.
"They just get on with their lives and try to find another job vs.
fighting what happened to them."
The
law
On paper, at least, the 1967 Age Discrimination in
Employment Act protects workers 40 and older from being discriminated
against in recruiting, hiring, firing, training, promotions, pay,
benefits, layoffs, retirement and other employment practices.
The ADEA covers about 70 million workers, or nearly half the work force.
It applies to all private employers with 20 or more employees, state and
local governments, employment agencies and labor organizations.
Age limits are allowed only in jobs where deteriorating
faculties could adversely affect performance, such as for police,
firefighters and pilots.
When it comes to benefits, employers can reduce them for older workers,
but only if the cost of providing them is the same as for younger
employees.
A Florida law banning age discrimination has no age boundaries defining
the protected class. Theoretically, someone younger than 40 could argue he
was fired or not hired because he's too young.
Yet despite the broad federal protection, jobs held by
older employees often land on the cutting board, especially during lean
economic times.
Bosses might perceive them as being more expensive than younger workers in
terms of salary, pension and health insurance. Then there's the perception
that older employees are less comfortable with new technology and less
adaptable overall.
In the past decade, downsizings, job insecurity, increased use of
part-time and contract employees and greater reliance on automation have
created what some researchers call a "corporate culture of
expendability" among older workers, the Administration on Aging says.
In a paper called "Age Discrimination: A Pervasive
and Damaging Influence," the federal agency said instances can be
obvious, such as a bank hiring an attractive, inexperienced young female
as a teller rather than an older woman with a strong background in similar
jobs.
"But it's the subtler forms of discrimination that may have the most
powerful effect on cutting short the productive years of Americans -- the
law partner who is moved to a smaller office when he passes 60, the
50-year-old professional who knows hard work won't bring any more
promotions, the vacancy filled by a younger staff member before older
workers even know about it, and the new boss who makes life so miserable
for the 60-year-old secretary he inherits that she quits."
Those less-than-obvious examples sound familiar to Kendra
Presswood, a Bradenton lawyer who specializes in employment law.
"Employers have gotten a lot more savvy nowadays," Presswood
said. "It's not that they don't discriminate anymore, they've just
gotten a lot smarter about how they do it."
Some are paying for their mistakes. The EEOC says $55.7 million was paid
to settle age discrimination claims last year, compared with $38.6 million
in fiscal 1999. Those figures exclude awards won in litigation.
What is legal is being fired purely as a cost-cutting
measure, says Wendy Smith, an employment law associate at the Sarasota law
firm of Abel Band Russell Collier Pitchford & Gordon. A legitimate
scenario: An older worker who rises through the ranks and earns a
comfortable salary gets let go by a boss who then turns around and hires
three younger -- and cheaper -- replacements.
"Sometimes it becomes more about making a business decision, but it
has the specter of age discrimination," Smith said.
For that same reason, she added, she would urge a company
to seek a more balanced ratio in mass layoffs that involve more older
workers than younger ones.
Moving
aside
Inherent in our culture is the assumption that it's the
natural order of things for older workers to move aside for the younger
ones. After all, they may have families to feed.
But expect that mindset to be challenged. People are living longer and
healthier lives -- a process that is redefining middle age.
And they don't appear to be heading willingly into the sunset.
According to the federal Bureau of Labor Statistics, the number of
Americans older than 65 is expected to jump by nearly 30 percent by 2010.
Although boomers will be approaching retirement age by the
next decade, an estimated 14.8 percent will continue to work past age 65.
When it comes to age discrimination, this millennium seems to have
awakened a sleeping giant.
According to the AARP, the EEOC won its biggest age discrimination case in
history this year, when it recovered $250 million in back pay for 1,700
public safety officers in California.
This fall, the U.S. Supreme Court will hear its first case of
"reverse discrimination" in the area of age bias.
Justices will decide if companies can be punished for
treating older workers better than their slightly younger colleagues. Both
groups have the same ADEA protections because they are both 40 or older.
At issue are retirement benefits offered to employees of a General
Dynamics division, which makes battle tanks and combat vehicles for the
military.
Workers in their 40s at plants in Ohio and Pennsylvania have sued the
company, claiming it gives workers age 50 and older a better deal -- full
health benefits after they retire.
As the argument goes, the comparatively younger workers
are victims of age discrimination.
A ruling in their favor could unleash a flood of lawsuits from younger
middle-aged workers who are retiring or being laid off.
An
important trend
Keeping close watch on the aging work force issue is the
Society for Human Resource Management, an international organization that
lists that trend among the most significant to affect the workplaces of
tomorrow.
Thirty-seven percent of companies polled in a 2002 demographic survey
agreed, saying that they expect it will have a great or very great impact
in the next five years.
Most said they expect the aging work force will spur an increased need for
retirement and succession planning; many said they anticipate a loss of
work ethic, company loyalty and increased customer complaints as older
workers retire.
Mary Misner, human resources manager at Teleflex Morse
Inc. in Lakewood Ranch, shares some of those sentiments.
She said that in interviews, older workers typically emphasize how hiring
them would behoove the company. By contrast, younger applicants tend to
reverse the roles, asking about vacation time and other perks that might
induce them to work there.
"If those are your main concerns, the message is: What's in it for
me?" she said. "It's more of a self-centered approach."
Misner said older workers also are less likely to job-hop
for slight hikes in pay. "They look at the entire benefits package.
They look at the entire culture."
But she disagrees that an increasing presence of older workers means that
companies soon will have to manage the inevitable "generational
divide" between boomers and Generation Xers, defined as those born
from 1965 to 1980.
"I don't see a clash on the horizon," she said. "We see
them looking out for each other."
Some older workers mentor younger ones while some younger
employees help their older counterparts with physical tasks or teach them
shortcuts, Misner said.
In a more recent survey focusing solely on older workers, the Society for
Human Resource Management said the advantages of hiring them outweigh the
disadvantages, such as the need for more flexible scheduling and training
to update skills. The organization also urged companies to play a decisive
role in developing benefits, retention and recruitment plans to attract
retirees.
Ahead of the curve seems to be the high-tech industry.
Ninety-one percent of companies polled in that sector said they have begun
to launch changes to attract older workers. Employers in educational
services are rated the lowest.
When it comes to the size of companies, survey results varied only
slightly. But a greater percentage of large companies -- those with 500 or
more workers -- appear to be doing more to prepare for the demographic
shift.
McCann, the AARP senior attorney, noted that boomers
traditionally have asserted their rights. But she stopped short of saying
that they wouldn't take age discrimination lying down, thereby causing the
number of future claims to plummet.
Society first must address its own negative stereotypes about aging, she
said. Only then will ageism stop being more permissible than other types
of discrimination.
"I think if we generalize about the boomers, we are doing the very
same thing we say employers shouldn't do," McCann said.
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