By Lorene D. Park, J.D.
The ADEA took effect in June 1968, but age discrimination still persists based on outdated and inaccurate assumptions about older workers and ability, according to a report released in June 2018 by Victoria A. Lipnic, Acting EEOC Chair. Today’s experienced workers are more diverse, better educated, and working longer than previous generations, yet the report finds age discrimination to be an “open secret.” Given that the median age of Americans is going up (the so called “graying of society”), and given that every human being who is lucky to live long enough will be in this particular protected class, one might expect a social movement opposing age discrimination, but not so far.
Employment Law Daily reached out to a group of seniors through the Council on Aging in Acton, Massachusetts, to discuss their views on discrimination. Several experienced age bias, both in and out of the workplace. Only one complained to the employer about discrimination; the rest explained they had not done so out of fear of losing their jobs and because they didn’t know that they could complain. When discussing various anti-discrimination movements, the seniors believed that the #MeToo movement has been very successful, and they offered several reasons why there is no similar movement opposing age discrimination, including: (1) seniors don’t realize they can oppose discrimination; (2) age discrimination isn’t as “glamorous” as other forms of discrimination; and (3) discrimination against seniors is accepted by society. One pointed out that in news stories, if there is a car accident, the media reports the age of elderly drivers as if implying age was a cause. Others keyed in on the “implicit bias” issue, noting that when interacting with the public, their opinions are often ignored or assumed to be less valuable.
Five things to know about age discrimination cases
• ADEA claims are harder to prove than Title VII claims because the ADEA requires age be the “but-for” cause for an adverse action and there are no mixed-motive claims (Gross v. FBL Financial Services)
• There can be subclass discrimination, so for example, an employer who favors employees in their 50’s over those in their 70’s can be liable, even though both groups are protected by the ADEA. The question is whether the age difference is substantial enough to show age bias. (Millen v. Oxford Bank)
• The OWBPA adds protections to older employees with respect to severance agreements waiving any ADEA rights; such waivers must be knowing and voluntary. Also, the ADEA prohibits waiver of future claims. The EEOC provides additional information on this issue.
• ADEA plaintiffs sometimes include “regarded as” disabled claims under the ADA and, given the society presumption of diminished capacity with age, those may become more common. (Presta v. Omni Hotels Management Corp.)
• Federal courts are split on whether the ADEA allows job applicants to bring disparate impact claims. (Kleber v. CareFusion Corp.)
Typical age discrimination claims
Age discrimination often arises from a presumption by employers that older employees have diminished abilities, are harder to train, and are less likely to be invested in the company’s future as compared to younger employees. Claims may involve being denied training and advancement opportunities offered to younger employees, being left out of important decisions, and being asked about retirement or encouraged to retire (e.g., “wouldn’t you like to go enjoy more time with family?). And there are often allegations of age-related derogatory remarks, such as calling workers “old man,” “grandpa,” the “old guard,” or saying things like “you can’t teach an old dog new tricks,” or that the company needs “fresh faces” or “young blood.”
Age-related remarks. For example, an attorney who was hired temporarily to perform in-house counsel work but denied a permanent position that was given to a much younger lawyer, raised triable issues based in part on a manager’s alleged statement that the company wouldn’t want him because he had “too much experience” and would be inflexible, which he argued was code for “too old” (Owen v. STMicroelectonics, Inc.). In another case, a 54-year-old regional salesman raised a jury question on whether part of his sales territory was reassigned to a younger salesman, his support staff was reduced, and he was constructively discharged because of age, based in part on the company president’s questioning if he was “too old to keep up with the younger guys” and comment that “you can’t teach an old dog new tricks” when referring to the employee’s ability to operate technological devices” (Giugliano v. FS2 Capital Partners, LLC). In some cases, though, courts find the term “old” or “older” to be ambiguous because it could refer to age or to longer tenure (e.g., Wexler v. Jensen Pharmaceuticals).
Suspicious circumstances. Many cases involve the discharge of a long-time employee under suspicious circumstances. For example, a produce manager in Maine who worked for a grocery chain for over 30 years and was considered the “food safety guru,” was nonetheless fired for improperly dating fruit, even though he disputed the accusation and though his termination did not follow the progressive discipline policy. These facts, combined with his supervisor’s questions about whether he could “handle” an upcoming increase in sales volume raised triable issues on whether he was fired due to his age (Pennington v. Hannaford Bros. Co., LLC).
In another case, a federal court in Pennsylvania found it suspicious that a truck and trailer parts distributor hired a second (much younger) counter salesman after years of having only one, had the longtime incumbent train the new guy, and then decided a short time later to eliminate the incumbent employee’s job (purportedly due to financial reasons) and keep the new guy. The timing, the 15-year age difference between the two men, and the long-time employee’s good performance history suggested pretext (English v. Truck Pro, LLC).
EEOC recommendations to avoid age-related stereotypes and implicit bias
The EEOC has suggestions for employers on workplace practices that can counter unconscious bias and stereotyping based on age, recommending the following:
• Include age in diversity and inclusion programs; age diversity can improve organizational performance, increase productivity, and lower employee turnover.
• Recruit workers of all ages and years of experience. Older workers do not cost significantly more than younger workers and tend to stay with employers longer than Millennials do.
• Assess interviewing strategies to avoid age bias. Interviewers tend to favor candidates who remind them of themselves, so consider an age-diverse interview panel.
• Provide career counseling, training, and development opportunities to workers at all ages.
We need a social movement. Meanwhile, I’m still waiting for social media to advance the cause for seniors who remain able and ready to work, who have valuable knowledge and skills to offer, but who are denied equal opportunities just because of implicit age bias. Perhaps we need some hashtags: #OlderWorkersRule #AgeEquality #ValueExperience #OlderWiser #FreeTheDentures #TakeItOldSchool
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