Workplace Age Discrimination Still Flourishes in America

ADEA and flawed laws

One reason ageism remains an issue is simply our American culture. We live in a youth-obsessed world that spent an estimated $53 billion on antiaging goods and services in 2019. Is it any wonder that our resistance to growing old is shared by the companies that employ us? Meanwhile, the rise of technologies that didn’t even exist until many older people were already well into their careers has led to hiring biases in which many organizations assume (often wrongly) that younger workers will be more tech savvy. And we, as older workers, sometimes unwittingly reinforce these prejudices. If you joke about having “senior moments” or complain out loud about kids using social media rather than the telephone, then you’re guilty of fanning a perception that the mindsets and capabilities of old vs. young are different. 

Dwarfing these societal factors, however, is the fact that the nation’s key federal law, the Age Discrimination in Employment Act of 1967 (ADEA), was essentially defanged by the U.S. Supreme Court in 2009. 

The history of the legislation goes back to the creation and passage of the Civil Rights Act of 1964 and specifically Title VII, which made it illegal for employers to discriminate based on race, color, religion, sex and national origin. 

Notice anything missing from that last sentence?

An amendment to include age discrimination as one of the protected categories in Title VII failed. Instead, Congress created a commission to study the issue of age discrimination, and that commission determined — without question — that workplace discrimination was rampant at the time (mid-1960s), with 50 percent of employers using age limits to deny jobs to workers 45 and older. That report led to passage of ADEA in 1967. It sought to “promote employment of older persons based on their ability rather than age [and] prohibit arbitrary age discrimination….”

When he signed ADEA into law, on Dec. 15, 1967, President Lyndon B. Johnson remarked: “This act does not compel employers and labor unions and employment agencies to choose a person aged 40 to 65 over another person. It does require that one simple question be answered fairly: Who has the best qualifications for the job?”

Fifty-two years later, that question remains: Are today’s jobs going to, and being performed by, the best-qualified workers, regardless of age? Unfortunately, in many cases the answer is no. Part of the problem is the law itself. Although ADEA was supposed to serve as an age-based equivalent of the Civil Rights Act, it never granted age the same level of legislative respect as race, gender or religion, and that’s why, in part, its idealistic goals have never been achieved.

Two key factors rendered it, from its inception, weaker than Title VII.

Lack of damages: Even if you win an age discrimination suit against an employer — and even if you prove the discrimination was intentional — the most you can be awarded is twice your lost back pay plus attorney fees if you prevail. Nothing for pain and suffering. So unless a company is facing a large class action suit, it has little to lose. In fact, many attorneys won’t even take on individual age-bias complaints for this reason. “This is not the situation for other types of discrimination,” explains attorney Alden. “For race, sex, national origin, disability and all the others, the employee, if successful, is entitled to compensatory damages and attorney fees.”

“Reasonable factors” are considered in employer’s defense: ADEA established two types of age discrimination: intentional (“disparate treatment”) and unintentional (“disparate impact”). The latter is defined as an employment policy that seems neutral but adversely affects older workers. An example might be a company deciding to lay off all its vice presidents. Nothing wrong with that on the surface, but since VPs are usually senior people, older workers would be hardest hit. Under ADEA, disparate impact discrimination is permitted if it’s based on “reasonable factors other than age.” So all a company would have to do to sidestep ageism claims is prove the layoffs were financially necessary. 

That all said, although imperfect the ADEA did afford older employees in the U.S. protections against age discrimination.

But then the law came under review by the Supreme Court, and its rulings further weakened the protections it granted to older workers. First the court upheld and even widened the damages and reasonable-factors loopholes. In 1993 it ruled that the Hazen Paper Co. did not discriminate against 62-year-old Walter Biggins when it fired him a few months before he became vested in its pension plan. The company argued that his dismissal was based on cost savings, not age, and the court agreed. Since then the Hazen decision has been relied on to narrow ADEA’s reach and to permit arbitrary actions based on inaccurate or stigmatizing stereotypes about age.

Then, in 2009, came Gross v. FBL Financial Services Inc., in which the Supreme Court essentially gutted ADEA. Fifty-four-year-old Jack Gross was reassigned in 2003 from his position as a claims administration director at FBL. His replacement was in her early 40s. The following year, he sued for age discrimination and the case ended up at the Supreme Court. It ruled that in order to prove age discrimination, one must show that age was the determining factor. In other words, even if you proved that your employer intentionally discriminated against you because of your age, if it was not the most important factor in the actions it took, you do not have a case. In addition, the Gross decision placed the burden of proof entirely on the plaintiff, as opposed to putting the burden on the organization to prove it didn’t discriminate, creating yet one more hurdle for older workers to overcome. 

The rulings in Gross and other cases have not escaped the attention of corporate America. One Wall Street recruiter told the AARP Bulletin that age discrimination is increasing in the financial sector. “If companies know they can get away with something, they’ll do it,” he says. “It’s like an episode of The Simpsons where Mr. Burns is rubbing his hands together with glee and saying, ‘We’re going to get rid of these senior people and save lots of money!’ ”

Other companies seem to discriminate against senior people in their hiring practices. AARP Foundation, which files age discrimination suits expected to establish significant legal precedents, is pursuing a case against PricewaterhouseCoopers, the accounting firm. The plaintiff, Steve Rabin, then 50, was rebuffed in his effort to obtain an associate position at PwC. At the time, he had an MBA and more than 10 years of experience in accounting services. The complaint asserts that a PwC manager asked Rabin whether he’d be able to “fit in” with younger employees and made other somewhat derogatory age-related comments. More than 3,000 other plaintiffs have joined Rabin in a class action suit against PwC. The company denies any wrongdoing, arguing that the plaintiffs have failed to offer “some reliable and verifiable way to identify who met the minimum qualifications.” 

It should be noted that most states also have laws against age discrimination — some are stronger than federal law; some weaker. California, for example, unlike ADEA, allows for both compensatory and punitive damages, and New Jersey explicitly permits employment discrimination against employees over age 70. The former may be why, in some years, California has seen nearly three times as many complaints of age discrimination than its residents report to the EEOC. Some states have lower burdens of proof, and state laws usually cover employers that the federal law does not, such as businesses with fewer than 20 employees. AARP is actively trying to improve state age discrimination laws, most recently in Connecticut, Oregon and New Jersey.

The company perspective on age bias

Frank Cania, president of HR Compliance Experts, believes that ageism is often considered by human resource departments as being on par with other types of workplace discrimination but that HR personnel are not as aware of it as they should be. Although a number of states have recently passed laws requiring employers to provide annual sexual harassment training, he says there’s no similar legislation or mandated programs that exclusively target ageism. “The average HR person would say, ‘Oh, yeah, that’s definitely a problem; it needs to be addressed,’ ” he explains. “But then they may place a job ad using terms like ‘fast-paced environment, energetic, technology ninja’ or ‘We work hard and party harder.’ ”

Unsurprisingly, tech companies are some of the biggest age discriminators. With Facebook CEO Mark Zuckerberg famously declaring in 2007 that “young people are just smarter,” Silicon Valley has become a poster child for the youth work culture. According to a 2016 report by Statista, the average median employee age at 17 top tech companies was 32, compared with 42 for the total U.S. workforce. That doesn’t appear to be a coincidence. In 2019, Google agreed to pay $11 million to settle the claims of more than 200 job applicants who said they were discriminated against because of their age. 

Older tech companies are not immune to the problem. A 2018 ProPublica investigation alleges that IBM deliberately engineered the dismissal of an estimated 20,000 employees over age 40 in a five-year period. “In making these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination,” the article asserts.

The EEOC is looking into these charges, and a class action suit has been filed. But whether the company will ever be held accountable remains to be seen. One workplace consultant who requested anonymity told the AARP Bulletin that IBM’s strategy was “brilliant,” explaining that its supervisors and attorneys were exquisitely aware of how difficult it is to successfully prosecute age discrimination, and they took full advantage of that. Last year, in response to the allegations in that suit and several individual suits, IBM told Bloomberg: “We have reinvented IBM in the past five years to target higher value opportunities for our clients. The company hires 50,000 employees each year.” 

EEOC: A watchdog loses its bark

The EEOC is supposed to be our police force in all this. Its job is to enforce federal laws that protect employees or job applicants from all types of workplace discrimination. Its mandate is also one of leadership: It’s charged with initiating investigations when warranted and being the overall champion of worker rights.

But when it comes to age discrimination, the EEOC is struggling to keep up, and to bear down. An analysis by the Washington Post found that of 205,355 total age discrimination complaints filed with the agency from 2010 to 2017, just 1 percent resulted in a finding of discrimination. That alone is not dispositive: It’s possible that the vast majority of these complaints are not actionable. 

But the numbers seem to tilt toward a finding that the EEOC has not been offering enough help in this realm. Indeed, according to the organization’s own data, it brought only 10 age discrimination suits in 2018. That’s a minute number compared with the disability (84) and sexual harassment (41) discrimination cases it brought that year. When one considers how difficult it is for an individual to file a complaint, the 8 months, on average, it takes for any sort of resolution, and the paltriness of the compensation (if any), you have to wonder whether the hassle is even worth it.

Cathy Ventrell-Monsees is an attorney and senior adviser at the EEOC. She acknowledges the numbers but explains that the agency is trying to be strategic. This means emphasizing tools such as mediation and settlements and bringing to court only those cases with the greatest potential impact. “For example, hiring is a big priority for us right now,” she explains. “Our researchers are looking at online hiring systems and algorithms that can incorporate biases in the job-selection criteria.”

But critics of the EEOC say there’s more at work than simple strategy. An investigation by the online publication Vox found a critical lack of resources at the EEOC. “It has a smaller budget today than it did in 1980, adjusted for inflation, and 42 percent less staff,” the article stated. “At the same time, the country’s labor force increased about 50 percent, to 160 million. … The EEOC, in short, can’t come close to fulfilling the mission Congress gave it.”

Ventrell-Monsees concedes that “age discrimination issues have become more visible as older workers remain in the workforce longer” but counters that the EEOC has “significantly elevated the attention the agency gives to age discrimination issues.” She cites a public commission meeting in 2017 focused on the ADEA@50, a web page of resources on ADEA, and the 2018 “State of Age Discrimination” report. 

While the EEOC is to be applauded for these efforts, it still handles an anemic caseload in the area and has said little of substance about its plans to alleviate what it identified as a “significant and costly problem” for older workers.

Gary Gilbert, a former EEOC chief administrative judge who now heads Gilbert Employment Law in Silver Spring, Maryland, puts it more succinctly: “The commission is just not appreciating the degree of societal bias we have against older workers at this time.”

That bias can even be found within the federal government, which is the largest employer in the U.S., with roughly 4.2 million workers, including uniformed military and postal employees. For one, it encourages bias with its mandatory retirement ages for many classes of employees. For example, federally employed law enforcement officers must retire at age 57, and air traffic controllers at 56. The assumption is that physical and mental abilities depart at those ages. In fact, in many cases there’s no science to support such specificity; these age limits are largely arbitrary. 

“Such regulations were designed to meet the need for, and I quote from the law, ‘a young and vigorous workforce,’ ” says John Grobe, president of Federal Career Experts, a consulting firm that advises government agencies and their employees about retirement. “But, hell, some people might lose a step at 55, and some might still be sharp as a tack when they’re 70.”

AARP Foundation is actively fighting discriminatory practices within the federal government. Last fall, Foundation attorneys filed an amicus brief in the Supreme Court case Babb v. Wilkie, arguing that the lower court, by requiring an extremely high standard of proof from federal employees making age discrimination claims, has not complied with the letter or spirit of ADEA. 

“Even a single incidence of age discrimination in government is worrisome,” says Dara Smith, a senior attorney at AARP Foundation. “Private-sector employers see that and say, ‘Well, if the federal government can get away with it, maybe we can, too.’ They should be held to a higher standard.”

Working toward solutions for age discrimination

Although the tendency is to view age discrimination in the workplace as an us-versus-them issue, general hostility toward employers isn’t going to solve anything. While there certainly are companies discriminating against older workers deliberately, most organizations are simply unaware of their age biases because they’re so ingrained in our culture. A 2015 PricewaterhouseCoopers survey of 1,322 CEOs in 77 countries found that while 64 percent had a diversity-and-inclusion strategy at their company, only 8 percent of those plans included age. “We need to work to bring employer practices in line with both the 21st century and the longevity we’ve been blessed with,” says Rupert.

“This isn’t entirely about us older workers reinventing ourselves,” adds Patti Temple Rocks, the communication expert who lost her job to a younger coworker. “It’s also about business reinventing itself to be more welcoming and inclusive.”

Still, Rupert, Rocks and other experts we spoke with agree that openness, flexibility and creativity are needed from employees as well, especially when it comes to the final chapter of our careers. They recommend a few strategies for older workers to explore if it fits their situation and comfort zone. 

First, talk about your future with your employer. “For all sorts of reasons, that conversation is not happening right now at most companies,” says Rocks. “Employees don’t feel comfortable saying, ‘I’m thinking about retiring in X number of years,’ because that marks them as not being committed. Likewise, employers don’t know how to talk about this because they’re uncomfortable or afraid of getting sued.”

But remember, as with all employees, employers have to do a cost-benefit analysis of older workers, says Jack Kelly, founder and CEO of WeCruiter.io, a social media platform to connect job seekers with recruiters. “It’s not just age,” he explains. “It’s not like they say, ‘Hey, Jack, you’re an old guy; you’re eating Werther’s candies; you’re wearing sweaters and slippers — we don’t want you around.’ It’s more the convergence of being a certain age and making a certain amount of money.” 

Which is why you should emphasize, and even quantify, your worth. The trick to avoiding a layoff linked to your “high” pay is continuing to be a revenue producer or value creator and making sure your boss realizes that. “If you’re bringing in money, they’ll keep you around until you’re 100 years old,” says Kelly.

Another strategy: Consider phased retirement; it’s rare so far, but sensible and on the rise. “If a super-valuable employee is willing tstay on and contribute their wisdom at 25 percent less pay and fewer days in the office, it’s a win-win situation,” says Rocks.

And, of course, stay confident in what you can and do contribute. For example, don’t fall for the ageist myths that brought us to this point—that older workers aren’t as sharp as younger workers, they are less productive and not as reliable, they aren’t as digitally savvy, and they are more ornery and difficult. Surveys and studies refute all of these myths. Indeed, after examining all the research on this topic, Peter Cappelli, a professor of management at the Wharton School of the University of Pennsylvania, says, “Every aspect of job performance gets better as we age. I thought the picture might be more mixed, but it isn’t. The juxtaposition between the superior performance of older workers and the discrimination against them in the workplace just really makes no sense.”

Beyond fighting these stereotypes in yourself and others, there’s also an important piece of bipartisan legislation that AARP endorses and every American should get behind: Protecting Older Workers Against Discrimination Act (POWADA). Essentially, it would restore the burden of proof for age discrimination cases so they would be on a par with other forms of workplace discrimination. Unfortunately, this legislation has been mired in Congress since 2009, when the Gross decision spurred its creation. It’s time to get it moving again. Contact your members of Congress today, ask where they stand on this bill, and encourage them to support its passage. AARP is doing the same.

“A lot of us spent years working and raising our families during a period when you didn’t make waves because you wanted to keep your job,” concludes Cania, of HR Compliance Experts. “While others have made their voices heard loud and clear on important issues like discrimination and harassment — such as women through the #MeToo Movement — we, as older Americans, don’t appear to have yet found the catalyst for our movement against age discrimination. Our voices need to be heard loud and clear, and often.”

Indeed, if we’re to make any progress against age discrimination in the workplace and protect our financial security (and dignity!), it’s time to speak up — and make America’s dirty secret public. 

Joe Kita has been an investigative journalist, book author and magazine editor for over 30 years and is a frequent contributor to AARP publications.