Workplace and Employment Age Discrimination and the Baby Boomer

With the epidemic of layoffs, downsizing, and outright job terminations, age discrimination by employers in the workplace has to be on the minds of all baby boomers.  We know (or will experience) how hard it is for someone over the age of 50 to find a new job after losing a job.

I recall observing early in my working life as an engineer what I now believe was age discrimination.  Twice in four years our section was called together as a group.  The section managers would then briefly mention how tough things were in the market and that this called for reductions in the design engineering staff.  We would then look around and notice that a few of our colleagues were missing.  They had been terminated.  In each case, it was one of the older guys.  They were good engineers.  They just made too much money compared to the newer hires.  And the new hires continued, as if there were not economic problems.  

I am afraid this pattern of firing the older folks first has been and will be repeated in our current economy although on a not so obvious basis.

What is Age Discrimination? 

The primary law is found in the Age Discrimination in Employment Act (ADEA) which was enacted by Congress in 1967.  The ADEA applies to employers having at least 20 employees (including state and local governments), to employment agencies, and to unions having at least 25 members.  The ADEA prohibits workplace age discrimination against employees and job applicants who are at least 40 years old.

This is how the age discrimination laws are applied to an employer:

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

Thus, it is important to note that age discrimination involves more than just firing.  It can include salary reductions that are applied unfairly to older employees.

This is how the age discrimination laws are applied to an employment agency:

It shall be unlawful for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.

This is important because some employment agencies are quietly expected to do the dirty work of an employer who is seeking only younger employees for a position that was filled or could be filled by someone over the age of 40.

This is the text of the fundamental anti-discrimination provision as applied to a labor union:

It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employ­ment any individual, in any way which would deprive or tend to deprive any individual of employ­ment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s age;

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

Again, we do not want unions trying to help out younger employees at the expense of older employees in hopes that the employer will agree to more favorable terms in an union contract.

Most employers are sophisticated enough to avoid making statements that expressly constitute age discrimination. 

Here examples of age discrimination in the workplace:

1.  If you apply for a job, someone in the hiring process says something like “they are looking for someone just out of school or in their 20’s or 30’s.”

2.  If you are in a job, look for a performance appraisal system that forces managers to rank employees in certain ways, including ranking a certain percentage in the lowest category.  Too often, the employees forced into the lowest category are the older employees who otherwise have received good performance evaluations.

3.  When there are layoffs, a disproportionate number of those affected are older employees.

4.  Improper use of early retirement incentives can be age discrimination.  This occurs if, for example, you are told that if you don’t accept the early retirement incentive, you may be transferred to a less desirable job or some of your best customers will be assigned to another employee.  Thus, with most early retirement incentive plans, those over 40 will be asked to sign a waiver of claims under the ADEA.  If that happens to you, I suggest that you ask your lawyer or union representative to look it over carefully with you first.

5.  You are demoted or your boss transfers some of your more lucrative commission work to a younger employee.  Sometimes this will happen with a statement like “we need more energy applied to these customers.”

6.  You are denied access to training or promotions that are offered to younger employees in similar positions.

7.  You are harassed on the job.  Some managers may try to cut costs by forcing you to quit by making your life miserable. 

8.  Your benefits are reduced compared to younger employees.  This can happen with health insurance, life insurance, disability insurance, and retirement benefits.  Look for employers spending less on your benefits because of your age or cutting out a benefit entirely based on age.

The courts have ruled in recent years that employer actions, even though not intended to discriminate against older employees, may still violate the ADEA if those actions negatively affect older employees more than younger employees.

There are exceptions to age discrimination under the ADEA:

Employers are allowed to apply age limits to certain jobs, based on what is called a “bona fide occupational qualification” (BFOQ).  This means that there is some physical aspect of the job that cannot be adequately performed by people in certain age groups.  This is very difficult for an employer to prove.

Employers are also permitted to impose mandatory retirement ages for employees who are least 65 years old, have been in an executive position for at least two years, and are entitled to a retirement benefit of at least $44k annually.

In some cases, public safety officers and tenured faculty members may also be forced into mandatory retirement or benefit reductions based on age.

If you feel that you have been subject to age discrimination by your employer, this is what you should do:

1.  Document as many of the facts as possible so that you have a record that you can use if a claim is filed.

2.  Consider making a formal complaint with your employer.  Some employers have HR or compliance personnel specifically designated for handling and responding to complaints of workplace discrimination.  Remember:  Your employer is not permitted under the ADEA to retaliate for making a complaint.

3.  File a charge with the nearest field office of the U.S. Equal Employment Opportunity Commission (EEOC).  Generally, an EEOC charge must be filed withing 180 days of the discriminatory action.  You cannot file a lawsuit under the ADEA without first making a charge with the EEOC.  Here are the locations of EEOC offices where you can obtain more information.

4.  File a charge with your state EEOC.  Many states have their own laws, rules and offices that regulate age discrimination in the workplace.  Some of the state laws may be more liberal than the ADEA.  You can file a charge with both.  Here is a list of state EEOC offices.

5.  Contact a lawyer.  If you have been severely damaged by what you think is a valid claim of age discrimination and are unsure of what to do, contact a lawyer that specializes in employment law.  You can often get a referral through your state or local bar association.

I hope you are never subject to age discrimination in your job or workplace.  If you are, learn your rights and take action.  As baby boomers ravaged by the effects of 2008, we need all of the help we can get.

Image credit:  Rodolfo Clix

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