Labor & Employment Law Daily EEOC report discusses ‘open secret’ of age bias, ‘fissuring’ of ADEA and Title VII
Tuesday, July 3, 2018

EEOC report discusses ‘open secret’ of age bias, ‘fissuring’ of ADEA and Title VII

Even though the Age Discrimination in Employment Act was signed into law in December 1967 and took effect 50 years ago this month (in June 1968), age discrimination remains too common and too accepted as outdated assumptions about older workers and ability persist, according to a report released June 26 by Victoria A. Lipnic, Acting EEOC Chair, on the State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act.

“Open secret.” The ADEA was an important part of 1960s civil rights legislation that was intended to ensure equal opportunity for older workers. Today’s experienced workers are more diverse, better educated, and working longer than previous generations, yet the report finds “many similarities between age discrimination and harassment,” explained Lipnic. “Like harassment, everyone knows it happens every day to workers in all kinds of jobs, but few speak up. It’s an open secret.”

Worse for women, minorities. The report points out the prevalent perception that age discrimination exists in our workplaces: More than 6 in 10 workers age 45 and older say they have seen or experienced age discrimination in the workplace; of those, 90 percent say it is somewhat or very common, according to a 2017 survey. African Americans/Blacks report much higher rates of having experienced age discrimination or knowing someone who had, at 77 percent, compared to 61 percent for Hispanics/Latinos and 59 percent for Whites. More women than men also say older workers face age discrimination.

And in the tech industry. Older workers in the technology industry report significantly high rates of age discrimination, with 70 percent of those on IT staffs reporting they had witnessed or experienced age discrimination. In fact, the report states that more than 40 percent of older tech workers are worried about losing their jobs because of age or consider their age to be a liability to their career.

Who files charges? The demographics of older workers who file ADEA charges have changed markedly since 1967, the report states, most significantly as to gender. In 1990, almost twice as many ADEA charges were filed by men than were filed by women. In 2010, the number of women filing age charges surpassed the number of men filing age charges for the first time, a trend that continues today.

In 1990, workers in the age 40-54 age cohort filed the majority of ADEA charges and workers in the age 65+ cohort filed relatively few. But by 2017, more charges were filed by workers ages 55-64 than the younger age cohort. Moreover, by 2017, the percentage of charges filed by workers age 65 and older was double what it was in 1990.

Impact. According to the EEOC report, the financial and emotional harm of age discrimination on older workers and their families is significant. Once an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and will likely take a significant pay cut if she becomes re-employed. Plus, job loss has serious long-term financial consequences: Older workers often must draw down their retirement savings while unemployed and are likely to suffer substantial losses in income if they become re-employed.

“Fissuring of the ADEA’s ties to Title VII.” Importantly, the report stressed that experts have expressed concerns about Supreme Court decisions in the past 15 years “that have severed the ADEA from its ties to Title VII, by relying on textual differences between the ADEA and Title VII, rather than their shared purposes and prohibitions.” The most significant ADEA case that divorces the ADEA from Title VII precedent is Gross v. FBL Financial Services, Inc., which held that older workers could no longer use the motivating factor framework derived from the same Title VII prohibition shared by the ADEA to prove unlawful age discrimination. Instead, the Supreme Court reasoned that the 1991 addition to Title VII of a provision setting forth a motivating factor framework did not apply to the ADEA because Congress failed to similarly amend the ADEA.

The report stressed that “while individuals with race or sex discrimination claims under Title VII can prove unlawful disparate treatment under either a ‘but for’ causation standard or a ‘motivating factor’ standard, victims of age discrimination are limited to just one — a ‘but for’ standard.” As a result, some courts have interpreted Gross as making ADEA cases harder to prove.

Recommendations. Stereotypes are tenacious and it takes generations to change a stereotype, the report pointed out, yet workplace practices can counter unconscious bias and stereotyping. Some of the report’s recommendations include:

  • Include age in diversity and inclusion programs and efforts. Research demonstrates that age diversity can improve organizational performance and lower employee turnover. Studies also find that mixed-age work teams result in higher productivity for both older and younger workers.
  • Avoid age bias by recruiting workers of all ages and not limiting qualifications based on age or years of experience. Contrary to common perception, older workers do not cost significantly more than younger workers. Millennials are leaving their employers, on average, after three years, whereas older workers, on average, provide employers with more stability, longer tenures, and ultimately a greater return on investment.
  • Assess interviewing strategies to avoid age bias, as studies and experience show that interviewers tend to favor job candidates who remind them of themselves. An age-diverse interview panel for prospective employees may be viewed more positively by candidates and may be less vulnerable to implicit bias.
  • Provide career counseling, training, and development opportunities to workers at all ages and at all stages of their careers. Mixed-age and reverse-age mentoring can increase worker productivity and satisfaction. Workers of all ages value flexible work options that can provide work/life balance at various times in their careers.

The report recognizes the similarities between age discrimination and other discrimination. Only about 3 percent of those who have experienced age discrimination complained to their employer or a government agency, according to recent research. Even with a booming economy and low unemployment, older workers still report they have difficulties getting hired.

“I hope the report also serves to put to rest outdated assumptions about experienced workers,” Acting Chair Lipnic commented. “As I’ve said many times, they have talent that our economy cannot afford to waste.”

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