For most of my life, I’ve always been fortunate to look younger than I actually am. This was only an annoyance at age 22 or 23 when getting carded for a beer. But by and large, I’m grateful to have won a scratch-off in the genetic lottery of life. That is, untill I reached my late 40’s.
I still looked young, relative to my age, but I started noticing the responses to my resume were slower, the call-backs fewer, despite having reached what I considered to be a very desirable level of experience. Now, this could have been for a host of reasons; changing job market, fewer opportunities in a world of rising expectations and diminishing opportunities. Maybe my personal quirks, etc.
But my colleagues started approaching me, telling me they weren’t getting the calls either. Over a period of more than 10 years of hearing this, I realized it wasn’t just me or my imagination. It was real. Something was happening. I realized, quite simply, that age discrimination was real.
Age discrimination in the workplace occurs when an individual is treated unfavorably because of their age. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees who are 40 years of age and older from discrimination based on age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. 29 U.S.C. § 623, and § 633a (federal employees). Specifically, the statute provides that federal agencies’ “personnel actions affecting employees … who are at least 40 years of age … shall be made free from any discrimination based on age.” 29 U.S.C. § 633a.
Yes, many of us know this on paper, but it’s no surprise that the marketplace does not necessarily abide by the law. (One may dive deeper into this subject by reviewing the case of Babb v. Wilkie, decided by the U.S. Supreme Court on April 6, 2020)
Our experiences in the job marketplace was one of the reasons we started Locum Integration back in 2013. We saw the writing on the wall and wanted a way to address this ugly reality and provide refuge to those 20 and 30-year experienced IT professionals who had the talent and experience but who may have been plagued with some gray hair, or perhaps no hair at all.
The funny thing about age discrimination is that it doesn’t wear a sign and it’s not always easily identifiable. It’s hidden behind silence, excuses, dismissal and a host of other single word descriptions of what someone experiences during the process of it.
Age discrimination can manifest in various ways, including, but not limited to:
- Disparate treatment: This occurs when an employer treats an older worker differently than younger workers in similar situations. For example, an employer may refuse to hire an older worker for a job they are qualified for or may pass over an older worker for a promotion in favor of a younger, less experienced employee. Many times, this also occurs when an employer simply wants to get someone cheaper, as opposed to paying an older, more experienced worker.
- Disparate impact: This occurs when an employer’s policies or practices, even if applied neutrally, have a disproportionately negative effect on older workers. For example, a requirement that all employees must be able to lift heavy objects could disproportionately exclude older workers who may have physical limitations. This practice is less hidden, and I believe there are many examples of this in the workplace. For example, think of all the industries that automatically plage age restrictions on a candidate, regardless of their personal level of health or circumstances?
- Hostile work environment: This occurs when an older worker is subjected to harassment or other discriminatory behavior that creates a hostile or abusive work environment. For example, an older worker may be subjected to age-related jokes or insults by coworkers or supervisors. This can also extend to people with disabilities, although companies, knowing this is illegal, will often dress this discrimination in a cloak of other excuses, such as down-sizing or changes in the company’s “mission”, etc, i.e, changing the job requirements after finding out of an employee’s disability.
- Prior to employment: Dismissal of one’s resume despite matching the job requirements, silence, unreturned phone calls all could be manifestations of older workers getting passed over for opportunities without even realizing it. Dates on one’s resume tip employers off to age before you’ve even had a chance to meet them.
As far as the law goes, the ADEA prohibits both intentional and unintentional age discrimination. However, it is important to note that the ADEA does not prohibit an employer from favoring an older worker over a younger one, even if both workers are 40 years of age or older.
Additionally, the ADEA does not prohibit an employer from taking age into account when making employment decisions if age is a bona fide occupational qualification (BFOQ). For example, an employer may be able to justify a mandatory retirement age for pilots based on safety concerns. However, in a world where people are living longer and healthier than ever, as I stated earlier, I do believe there is some abuse of this particular behavior, often again, deflected and guised as something else.
During this ruling, the Court noted, however, that “but for” motivation is an important factor in determining available relief to the wronged plaintiff. In this example with Federal workers, even if federal workers meet the loosened standard, they may not be entitled to the same remedies as if they could show the higher “but for” standard. Where federal workers can show that they were subjected to unequal consideration in an employment action because of their age, they are entitled to injunctive or other “forward-looking” relief, but not reinstatement, backpay, compensatory damages, or other forms of relief related to meeting the higher standard. It will be up to the courts going forward to define what forms injunctive and other forward-looking relief will take for workers.
The Civil Rights Act of 1990 provides for the payment of monetary damages to individuals who have intentionally been discriminated against. Here are some examples:
- Coded comments.
When company leaders say younger workers are “fresh faces” and “new blood,” while older employees are “set in their ways,” it can be an indication of a discriminatory mind-set, says Kellee Boulais Kruse, who represents workers as a principal at the Employment Law Group (TELG) in Washington, D.C. In fact, the U.S. Equal Employment Opportunity Commission (EEOC) recently warned employers that the use of terms such as “energetic,” “young,” and “recent graduate” could be considered signs of systemic age discrimination.
- Different dealings.
Are younger workers getting all the opportunities for training, promotions and juicy projects? If older workers are raising their hands but always being passed over, it could be a sign of ageism. The same goes for buyouts that are offered only to older workers.
- Wounding words.
Abusive words are enough to create a hostile work environment, Kruse says. A slew of age remarks can make a worker feel uncomfortable. “But it has to be more severe and pervasive than a one-off comment,” experts say.
- Ageist assumptions.
Comments that older workers don’t understand technology and social media or can’t work as hard can indicate a discriminatory attitude. TELG litigated a case against a manufacturer that axed its successful, long-term IT leader because the manufacturer thought it looked bad to have an older worker in charge of technology.
- Social segregation.
Time with the bosses outside the office can grease the skids to better opportunities. If everyone but the older workers are part of the fantasy football league or happy hour, a culture of ageism may be to blame.
- Lopsided layoffs.
If companies lay off only older workers or eliminate the jobs of older workers and then have younger workers pick up their responsibilities under a different job title, it smells fishy. If a worker files an EEOC complaint, the government may ask the company to provide the ages and titles of everyone (laid off or not) in the unit where the cutbacks are made.
- Perplexing pretexts.
Companies that discriminate come up with creative excuses. But if they demote someone older for poor performance even though the person’s ratings have been great, it’s a sign of discrimination, says Eric Bachman, a D.C.-area specialist in employment discrimination and principal at Zuckerman Law. The same for turning down an older worker for a promotion because he made only seven sales for the year instead of the required eight, but then promoting younger staffers with only two or three sales, Bachman says. “Where the rubber meets the road is in showing the employer’s reason for the action is a lie,” he says.
Suffice it to say, age discrimination is real. Two out of three workers 50 and older say they face age discrimination in the workplace, with many saying it prevented them from being hired, according to AARP Research surveys. If you happen to work in the high-tech, hospitality or the entertainment industry, your chances of experiencing age discrimination are even higher. I know this personally and experienced it in Hollywood during my tenure there.
It can be a fine line, so here are some cautionary things to keep in mind when facing possible age discrimination (Source: AARP):
1.) Age discrimination is illegal at any stage of employment, including during hiring, promotions, raises and layoffs. The law also prohibits workplace harassment, by coworkers, supervisors or clients, because of age. The ADEA applies to employers that have at least 20 employees; some states have stronger protections. Also prohibited: mandatory retirement ages except for a few exemptions, such as airline pilots and public safety workers.
2.) It is currently legal for employers and prospective employers to ask your age as well as your graduation date. AARP is working to strengthen protections against this line of inquiry. You can opt to remove this identifying information from your LinkedIn profile, or try to redirect the question in an interview, but there’s nothing stopping a prospective employer from asking. However, state laws in California, Colorado, Connecticut, Delaware, Minnesota and Pennsylvania do specifically prohibit questions about age during the hiring process.
3.) A 2009 U.S. Supreme Court ruling made it harder for older workers who’ve experienced proven age discrimination to prevail in court. The court said plaintiffs must meet a higher burden of proof for age discrimination than for other types of discrimination. In other words, the Supreme Court moved the law backward and sent a message to employers that some amount of proven discrimination is legally allowed.
4.) Most Americans age 50 and up — 9 in 10, according to AARP research — say they want to see Congress create stronger laws to prevent age discrimination at work
5.) Most people believe age discrimination begins when workers hit their 50s. According to a 2023 survey of employers from the Transamerica Institute, 35 percent of the respondents thought the median age when applicants were “too old” to be hired was 58. The respondents also said that 62 was the median age of someone being “too old” to work.
6.) There’s also a gender difference in the perception of age discrimination: While 72 percent of women between the ages of 45 and 74 said they think people face age discrimination at work, only 57 percent of men in the same age range said so.
7.) Among older workers surveyed by AARP, hearing negative comments about an older co-worker’s age is the most common type of age discrimination they experienced on the job, with 25 percent of respondents citing it. Among jobseekers, 50 percent say they were asked for age-related information such as graduation dates on a job application, and 14 percent say they were not hired because of their age.
8.) You can take action. If you think you’ve been discriminated against, you can file a charge with the federal Equal Employment Opportunity Commission (EEOC). You can also work with a lawyer to file a lawsuit. Before taking either of these steps, consider going through your company’s grievance system, if it has one. Know that filing a lawsuit can be expensive and there is no guarantee of victory. To help bolster your case, be sure to keep a careful record of all of the alleged discrimination.
9.) In 2023, the EEOC received 14,144 charges of age discrimination. That’s a notable increase from the 11,500 charges reported in 2022. The COVID-19 pandemic caused big shifts among workers of all ages, especially older adults who may have paused their careers or had health issues. The EEOC data suggest that post-pandemic, age discrimination is rising once again.
10.) Contrary to stereotypes, workers aged 50 and up are among the most engaged members of the workforce, according to an AARP study. Sixty-five percent of employees aged 55 and up are “engaged,” compared to 58 to 60 percent of younger employees. They also offer employers lower turnover rates and greater levels of experience.
Let’s face it: older workers often have a work ethic and levels of integrity are far higher than those who grew up in a world of social media, a place where everyone eagerly and happily displays the highlight reels of their lives. There’s a sense of calm amongst older, more experienced workers. With age comes wisdom, patience, and most important of all, tolerance.
If you feel you’ve been the victim of age discrimination, reach out to a good employment attorney. The free consultation most of them offer will be worth it.
In a world where real opportunity is getting more and more difficult to find, Locum Integration is here to help. Feel free to reach out to us anytime. We’re here to help you create your livelihood.