Hiring and firing decisions are often difficult for managers tasked with reducing labor costs while attracting and retaining the best workers. Sometimes, managers are forced to decide between hiring or firing older employees that tend to have higher earnings and younger, less expensive workers.
When the decision to hire a younger employee over an older one, or to fire an older employee before a younger one, is made just on the basis of age, employers are likely to run afoul of laws intended to prevent age discrimination. Particularly when the decision goes against an older worker because of the preconceived notion that older workers will not be as productive, are likely to cost more for health insurance and are more likely to be hurt at work or require medical leave, employers are exposing themselves to potential lawsuits for discriminating against a person due to advanced age.
The Age Discrimination in Employment Act of 1967 (ADEA) was written with the intention of addressing the growing issue of discrimination against older employees. Specifically, the act prevents employers from hiring or firing employees for being over the age of 40. The ADEA incorporated age discrimination into the existing classes established by Title VII of the Civil Rights Act of 1964. When the act went into effect in 1967, the average life expectancy of a male worker was around 67 years old. Today, Americans are expected to live into their 80’s, with expectations that even longer lives will become the norm.
In addition to Americans living longer, significant changes in the makeup of the workforce have caused an increase in the number of age discrimination cases filed each year. Until the recent Millennial Generation, the Baby Boomers, the 79 million Americans born roughly between 1946 and 1964, were the single largest generation in US history. Today, the youngest Baby Boomers are nearing traditional retirement age, but statistics show that more of that generation are continuing to work than ever before.
In 1967, workers over the age of 55 made up 18 percent of the more than 77 million workers nationwide according to the Equal Employment Opportunity Commission (EEOC). In 2018, 160 million Americans were employed, with workers over the age of 55 accounting for 22.8 percent. A smaller percentage of workers under the age of 25 is in the workforce today than in 1967, a statistic that bodes ill for workers counting on Social Security for retirement funding.
Source: Bureau of Labor Statistics. Changes in Age of American Workers 1967-2017
The Bureau of Labor Statistics (BLS) anticipates these numbers to continue to grow disproportionately. BLS estimates the group of workers over the age of 65 will increase by 75 percent by 2050, while workers between the age of 25 and 54 will grow by only 2 percent.
Beginning in about 2001 through 2008, American workers experienced the most severe recession in modern history. As the economy contracted, employers were forced to lay off and fire unprecedented numbers of employees to trim costs. In 2008, the EEOC saw the highest number of age discrimination filings in history, with more than 24,000 cases filed nationwide. About 18,000 cases were filed in 2018.
Older workers, viewed falsely even today as a greater liability than younger employees by many managers, bore the brunt of terminations and found it more difficult than ever to re-enter the workforce. The problem was compounded as many older employees saw their retirement funds shrivel, forcing them to need to keep working long after they had planned to call it quits. The American Association for Retired Persons (AARP) reports that while 40 percent of workers today intend to retire by 70, only 4 percent are able to do so.
Proving Age Discrimination
Age discrimination in the workforce today is wide spread. Despite more than 50 years of laws preventing discrimination, and numerous informational campaigns intended to change false stereotypes and challenge incorrect assumptions about older workers, the beliefs held by some employers remain persistent, and lead to personnel decisions that are often discriminatory against older employees. Studies by AARP show age discrimination is more common than sex discrimination or racial discrimination.
In a 2017 study, Tulane University sent 40,000 job applications to 13,000 open jobs in the US, with resumes representing younger, middle aged, and older applicants, all with similar skills. The researchers found that older applicants received 20 to 50 percent fewer call backs than younger workers, leading to the conclusion that the discrimination is age-based, not skill-based.
Proving age discrimination is more difficult than other classes of discrimination covered by Title VII. In part, a 2009 Supreme Court decision in the case Gross v FBL Financial Services Inc. restricted claimants ability to prove discrimination by requiring a more difficult standard of proof than what is allowed under other areas of discrimination law. The standard that is required is known as “but-for,” as in, the employee would not have been fired, laid off, demoted, or not hired but for their age.
In other discrimination matters, the courts typically will use the standard of “motivating factor,” and once a claimant has shown a preponderance of evidence that the cause of discrimination claimed was a motivating factor in the adverse employment decision, the burden of proof is shifted to the employer, who must prove they would have acted the same regardless of the alleged bias.
For older workers, this means that to prove a discrimination case based on age, they will need to show direct evidence of discrimination to have any chance of proving their claim. This can be particularly challenging, as it is fairly rare that an employer will tell an employee they are being fired for being too old. Instead, supporting evidence often aids the worker in demonstrating that age was the only motivating factor in the decision against them. This can be shown when an older employee is terminated and replaced with a younger worker with similar skills.
Often in hiring, age discrimination shows up in small ways. Asking a person’s age is largely discouraged in an interview, but employers will instead ask for the year of high school graduation, which typically gives a good estimate of an applicant’s age. Others will use online applications that restrict the date range of when an applicant received a degree, for example, to indirectly discriminate against older workers. In some particularly egregious examples, employers will request applicants have no more than a particular number of years experience. The more obscure the method of asking about the age of an applicant, the more difficult discrimination becomes to prove, and in the vast majority of instances, those who are discriminated against have no real legal options.
Age discrimination is also very difficult to prove in situations where two or more employees are eligible for a promotion, but the job goes to a younger worker. These cases are difficult because it is nearly impossible to separate the reasons for promoting one worker over another in such a way as to demonstrate that the “but-for” threshold was crossed. Most often, these older workers will not have enough evidence on their side to successfully argue for benefits.
Older workers that believe they are being discriminated against should do as best they can to collect evidence, whether it is in the form of memos, emails or phone conversations in which a supervisor implies a bias, or through changes in personnel and attitudes toward older workers. When an employer treats all older workers differently, and negatively, the older employees should document the experience.
If an older worker does decide that it is in their better interest to file a claim, they should contact the company Human Relations contact first to file a formal complaint. Pennsylvania, like almost all states, operates it’s own agencies for handling claims of discrimination. The Pennsylvania Human Relations Division operates the state’s filing system and has information and forms available for workers seeking to file a claim.
Retaining a skilled employment attorney is a must when filing a discrimination claim. The laws that regulate discrimination are complex, and the process of correctly filing a claim, collecting evidence and preparing to argue the claim should be handled by a lawyer who know Pennsylvania law and how best to proceed.