Age Discrimination Is Pervasive, Tough to Prove-And Even Tougher to Litigate

By McCann, Laurie | Aging Today, March/April 2012 | Go to article overview

Age Discrimination Is Pervasive, Tough to Prove-And Even Tougher to Litigate


McCann, Laurie, Aging Today


Beginning in 2007, the number of age discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) began to rise precipitously, and as of the latest statistics update this past fall, the increase showed no signs of waning. This development came as no surprise to those who follow age discrimination. In the words of political commentator James Carville, "It's die economy, stupid."

Mirroring EEOC statistics, unemployment among older adults has risen markedly in the past several years, according to a November 2011 AARP Public Policy Fact Sheet (www.aarp.org/content/dam/ aarp/research/publk-policy -institute/ econ^sec/20U/fs244.pdf). And once unemployed, workers ages 55 and older tend to remain jobless for much longer than younger workers.

The federal Age Discrimination in Employment Act of 1967 (ADEA) protects individuals ages 40 and older from employment discrimination in hiring, firing, layoffs, promotions, compensation (including benefits) and other conditions of employment. It applies to employers with 20 or more employees, including state and local governments, and it prohibits age discrimination by employment agencies and labor unions.

Discrimination Taints the Workplace

Despite the ADEA prohibiting employers from making employment decisions based on age for more than 40 years, age discrimination remains a pervasive force in the workplace. While its most blatant forms like mandatory retirement and maximum hiring ages are distant memories, more subde forms still exist These sophisticated forms of age discrimination suggest that while employers may overtly attempt to comply with the law, stereotypes about aging continue to taint their practices.

Research on age stereotypes demonstrates that most individuals harbor inaccurate stereotypes about older adults, and such unfounded assumptions have persisted in disadvantaging this population for decades. The most common misconceptions about older workers are that they are less productive, more expensive, less adaptable and more rigid, and they don't really want to work but would rather retire as soon as possible.

The facts clearly refute such stereotypes. Studies consistently demonstrate that aging has no impact on job performance or productivity except perhaps in jobs that are physically demanding (for detailed statistics see Jan van Ours' 2010 "Age, wage, and productivity," voxeu. org/index.php?q=node/4713). Drilling down into age and productivity, one 2008 study ("Do Older Workers Lower IT-Enabled Productivity?") stated, "workers older than 49 are not significantly less productive than prime age workers, whereas workers younger than 30 are significantly less productive than prime age workers."

Older workers generally have better attendance and exhibit loyalty and commitment to their employers writes Ken Dychtwald in Age Wave: The Challenges and Opportunities of an Aging America. And while die costs of some benefits increase with age, the ADEA allows employers to account for such age-related cost differences and provide fewer benefits to older workers, as long as they spend the same amount to provide die benefit to older and younger workers. …

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