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Age discrimination has afflicted employment practices since the last century, especially in the area of hiring. In fact, employment is probably one of the areas where ageism is most prevalent. It involves treating an applicant less favorably because of their age. Despite efforts to eradicate it, it remains prevalent today and is a particularly pernicious and insidious phenomenon.

Two types of age discrimination in employment have been identified: “hard” discrimination involves the sorts of legally prohibited behaviors that have been the subject of legal initiatives, while “soft” discrimination refers to ageist statements and attitudes that take place primarily in the interpersonal sphere and, while not legally prohibited, can fuel acts of “hard” discrimination. An example of the former might be a job announcement that expressly limits a position to applicants below a certain age, while an example of the latter might be a conversation between colleagues negatively stereotyping older workers. “Hard” discrimination is easier (but by no means easy) to address than “soft” discrimination.

Age discrimination in hiring is based on outdated stereotypes of older workers’ abilities. While positive stereotypes of older workers as being reliable and loyal exist, they are exceeded by biases against older workers as resistant to change and training and uncomfortable with technology. Not only does age discrimination in hiring immiserate older workers who want or need to work, but there are also costs to the public in the form of billions of dollars in unemployment and earlier social security payments to older workers who cannot find work.

 

And now for some statistics on the problem . . .

Significantly, the representation of older workers in the work force is sizeable and growing: in the past 25 years, the share of older workers over age 55 in the workforce has doubled, with the number of workers over 45 now comprising some 44% of the workforce. Prior to 2009, most workers indicated a desire to retire before age 65; most now say they intend to keep working. And the increase in the number of older workers is taking place across all ethnic and racial groups. Whereas older men tended to be more heavily represented among the ranks of older workers, older women are catching up, and that latter cohort is expected to grow by 75% by 2050. And the presence of older workers in the workforce will grow further still in the coming years (and faster than other age groups), as workers over 65 remain in or reenter the workforce in greater numbers. While expected future labor shortages are likely to improve prospects for older workers, at the same time, as the ranks of older workers seeking employment continue to grow, the problem will persist.

Several factors account for the growing number of older workers. To begin with, that generation is healthier and has a longer life expectancy than earlier generations. Moreover, the increasing age at which social security benefits kick in and the sharp reduction of older people with traditional pension benefits are fueling the need for older workers to remain in or rejoin the workforce. Only 50% of older workers have saved enough to cover their basic needs into their 80s and 90s; over 25 million older Americans are characterized as economically insecure.  In this regard, 80% of baby boomers want or need to work past retirement, and the statistics are even worse for women. Thus, the fact is that more and more older workers want and/or need to work.  In addition to financial considerations, work provides older workers with a sense of purpose and social connection that they badly need.

 

The truth about older workers . . .

Age discrimination in employment is rampant and based on unjustified assumptions and stereotypes about older workers’ abilities among employers; these attitudes reflect, of course, stereotypes that are pervasive in society-at large. The prevalence of age discrimination in hiring, like age discrimination in general, is ironic, because unlike sex and race discrimination, everyone who lives long enough may experience it. Research shows that most people have negative beliefs about the abilities of older people. Among the qualities attributed to older persons are that they are irritable, nagging, decrepit, cranky, feebleminded, useless, ugly, inflexible, and unhappy.  Sadly, many older workers accept these same stereotypes. Employment decisions should, of course, be made on the basis of older individuals’ actual abilities.

As for cognitive decline, research shows that cognitive abilities among the aged vary among individuals, and many older people perform as well or better than younger people on the job. Older brains have been shown to be more adept at problem-solving and exercising sound judgment. Contrary to public perception, only .5% of persons over 65 are senile, and the brain activity of healthy people in their 80s is comparable to that of people in their 20s. Likewise, though bodies generally weaken as they age, physical ability varies among older people and, in any event, an ever-shrinking number of jobs require manual labor.

Studies further show that older workers add creativity to an enterprise, are relatively healthy, and are happy in their work. In fact, there is little or no correlation between job performance and age, and older workers have been shown to outperform younger workers because of their dependability, more harmonious working styles, and superior judgment. Research further shows that older workers are excellent learners and learn new tasks as effectively as younger workers. Moreover, older workers excel at accuracy and steadiness of output.

Intergenerational collaboration in the workplace has been shown to be valuable to employers, as each set of workers brings different advantages to the table. While older workers do take longer to recover from workplace injuries, they have fewer accidents than younger workers in the first place. Despite assumptions to the contrary, older workers remain in their positions longer than younger workers, imparting stability to employers, and are not more costly to employ. In short, they actually offer a better return on investment than younger workers. As an example, Ashton Applewhite (who has written extensively on ageism) cites the story of the Metropolitan Transportation Authority after Hurricane Sandy, where the knowledge of veteran workers proved invaluable to getting the system back up and running.

Employment cultures that abjure negative stereotypes about older people and encourage diversity in their ranks enjoy more productive and engaged workforces. In other words, workplaces that employ practices that aim at eliminating bias, both conscious and unconscious, simply do better.

 

The legal landscape . . .

In order to confront age discrimination in employment and encourage the hiring of older workers, Congress in 1967 enacted the federal Age Discrimination in Employment Act (ADEA), which prohibits employers with 20 or more employees, federal, state, and local governments, employment agencies, and labor organizations from discriminating against individuals who are age 40 or over in any aspect of employment, including hiring. Accordingly, among other matters, job advertisements may specify an age limit only in rare circumstances. Under the ADEA, even an employment policy or practice that appears neutral on its face can be illegal if it has a negative impact on applicants age 40 or over and is not based on a reasonable factor other than age.

Individuals may bring complaints before the EEOC, which will investigate the charge if it has merit and seek a resolution by mediation or conciliation, take the matter to court, or authorize the complainant to sue the employer. The EEOC’s enforcement efforts have focused on both individual and systemic hiring discrimination. Each year, thousands of age discrimination complaints are brought before the EEOC. Many cases are settled, and only about 1% of cases end up in federal court, with most complainants losing. Owing to the difficulty of proving age discrimination in hiring decisions, very few cases brought under the statute are about failure to hire.

Notably, certain aspects of the ADEA have weakened its teeth and have led to the paltry level of success for complainants. First, an employer may impose an age limit where it is a “bona fide employment qualification”, meaning that it is necessary for the job — an exception known as “BFOQ”. This exception is usually invoked by employers in industries involving public safety or where age is considered essential to the job, such as airlines and modeling. Second, a 2008 Supreme Court case, Gross v. FBL Financial Services, Inc., has been interpreted to require that complainants in an ADEA case prove not only that age was a contributing factor in an employment decision, but that it was the decisive factor. This standard, which does not apply in race or sex discrimination cases, has made age discrimination cases under the ADEA harder to prove. As an evidentiary matter, ageist statements by an employer may constitute evidence of discriminatory intent, but courts have generally ruled that such statements must have been uttered by the decision-maker and that the remarks were made in relation to the hiring decision in question.

The ADEA has likely been successful in curtailing the most egregious cases of age discrimination in hiring and has had particular success in certain professions (e.g., flight attendants).  However, even five decades after the ADEA was enacted, more subtle forms of ageism in hiring persist, as employers cling to outdated assumptions about older workers despite the facts to the contrary. Sadly, six out of ten older workers report having seen or experienced discrimination (the figure is even higher in the technology sector), and 90% find it to be common. A 2015 survey found that three out of four older workers believed their age was an obstacle to finding employment. A recent study found that older workers were denied job interviews more frequently than similarly situated younger groups. Nevertheless, most cases of discrimination are believed to go unreported to enforcement agencies.

 

Some prescriptions for addressing the problem . . .

The ADEA is overdue for revision in light of the limitations on its efficacy referred to above. First, Congress should amend the ADEA to modify the Gross decision’s standard for age discrimination claims so that complainants can prevail as long as age was a contributing factor in the employment decision, thereby putting age discrimination in the same boat as race and sex discrimination. Second, the BFOQ exception should be reined in so that it only applies in cases where age is clearly a requirement for doing the job and individually assessing candidates’ skills for the job is not practical. Third, the evidentiary hurdles to proving cases should be addressed so that cases are not as difficult to prove. Finally, bar associations should be enlisted to encourage attorneys to devote pro bono time to representing claimants who do not have the resources to hire an attorney in actions under the ADEA.

Either the Department of Health and Human Services or the EEOC should embark on a campaign to require or at least encourage companies to train their employees, particularly those involved in hiring decisions, not to engage in age discrimination in the workplace and advise them of the legal prohibitions against it. Employers should be encouraged to remove all anti-age bias from their recruitment policies and practices. Recruiters should be trained to abandon stereotypes about older workers and be encouraged to recruit them. Employment applications should not be permitted to ask for an applicant’s date of birth, unless being of a certain age is necessary for performing the work. Terms of employment should be revised to make positions more attractive to older workers, such as part-time employment.

The federal government should also consider ways to create affirmative action for older workers. While programs exist to assist older workers find jobs, they are limited to indigent individuals and are inadequate; these programs should be expanded and broadened. In addition, employers should be encouraged to include age in their diversity and inclusion programs and to create an advisory group of older workers to advise the employer on eliminating discriminatory attitudes and practices. Finally, employers should be required to file an annual report to the EEOC on the age profile of their workers and measures they are taking to increase the representation of older workers in their workforce and to combat age discrimination in the organization.

Most crucial would be a campaign to combat negative stereotypes of older people and to raise awareness about the illegality of age discrimination in hiring more generally. Most people are aware of the illegality of sex, race, and other forms of discrimination, but many fewer are aware of the illegality of age discrimination; in fact, many think it is quite legitimate. This campaign, undertaken in collaboration with nonprofits such as AARP and the Ad Council, would involve the creation of posters and public service announcements debunking the negative stereotypes about older workers and advising that age discrimination is against the law. They would show older workers in productive and leadership positions and provide information about filing complaints under the ADEA. Among the places where such posters should be displayed are employers’ human resource offices, but much wider dissemination is necessary.

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Ageism is perhaps the most difficult form of discrimination to combat, because it is so widespread, embedded, and accepted in our society.  The workplace is one of the most significant places where it lurks. Yet, it is still tolerated, despite the cost to the well-being of elders, to companies, and to the public. It is important that bold legislative action and policies be pursued to chip away at this toxic form of discrimination.