“Does age poison us, or do we poison age?” Astrid Alauda
This is Part Two of a Four-Part Series taken from my recent speech at Montreat College regarding Legal Issues as We Age, in which I primarily focused on Age Discrimination in the workplace. In Part One, today’s workplace was described as unique, given that it is the first time in American history that four generations are working side by side. It also touched on some of the differences among the generations, such as background, workplace culture, experience, skills and mindsets. It is these very differences that lead to stereotypes from which age discrimination emerges.
Age discrimination is often more subtle than other forms of discrimination, due to its being precipitated by false stereotypes equating age with ability rather than the group hatred prevalent in other forms of discrimination. It happens in the workplace when people make decisions about men and women based on ageist stereotypes regardless of the merit he or she is able to demonstrate. It exists in recruitment, selection, promotions, and training opportunities. There are negative assumptions about one’s ability to pick up technology and new processes, in general. An aging person may hear comments from co-workers, managers and family members, such as “[y]ou’re too old to do that,” “[p]eople in your generation don’t understand these things” and “[y]ou’ll be retiring soon anyway, won’t you?”
This age discrimination, which forms in the minds of younger workers, and to some extent, in all of us, is real. When Congress had before it the Age Discrimination in Employment Act, which protects most workers in our nation who are over 40 years old, one House representative, Representative Roman C. Pucinski, went undercover. His description of what took place follows:
[I wore] a sports shirt, a pair of slacks, and went out to a number of factories and tried to get a job. I didn’t identify myself, I just stood in line with a number of other people and I was shocked. In most instances they did not ask my name. They didn’t ask my experience. They saw my gray hair and asked “How old are you?” When I said I was 46, they wouldn’t even talk to me. They didn’t ask what experience I had; could I do the job; did I have the ability. They didn’t even bother asking. When I told them I was 46, they said “We are sorry. It is company policy we don’t hire anyone over 40. (1)
Where I commonly see this is where a company has a buyout, or is restructured, and the people at the top of the pay scale are let go. Then the question of age is raised, because those at the top of the pay scale have usually been at the company the longest, and are therefore older than the persons lower down on the pay scale. If the adverse employment decision was based on age, it is age discrimination. If the employer can show that the termination or adverse employment action was for a legitimate business reason, it is generally not age discrimination. We will get more into the technicalities of the law in this area in Part Three of this series.
Age discrimination is devastating to an aging worker who usually has less options than his or her younger counterparts when faced with an adverse employment action. Statistics show that that once unemployed, the older worker is likely to remain without work for a longer period of time than a younger counterpart. This is due to a variety of factors: the older worker probably owns his or her own home, may have school age children, and has strong ties with the community which are difficult for him or her to sever.
Other studies indicate that for many displaced older workers, the search for a job is a new and difficult experience and that they are unprepared for personnel interviews, employment tests, and competition of better educated younger workers. Additionally, the older worker initially attempts to seek out better paying jobs commensurate with his or her experience, thereby tending to diminish the job market available to him or her. He or she is often hesitant to retrain in order to meet our economy’s changing demands for skills and to augment his or her work qualifications. It is frequently economically or emotionally difficult for him or her to relocate to areas having better employment prospects.
Age discrimination in employment is one of the great barriers to workplace participation faced by people in our country today, and is one of the ways in which we, as a society, tend to poison age.
Part Three of this Four-Part Series will address the remedies the law gives those ages 40 and over in the workplace who experience age discrimination, via the Age Discrimination in Employment Act.
1. HR Rep No. 805, 90th Cong. 1st Sess (1967), reprinted in 1967 US Code Cong & Admin News 2213, 2219; See Hamilton v. Caterpillar, Inc.,966 F.2d 1226, 1228, 15 Employee Benefits Cas. (BNA) 1926, 59 Fair Empl. Prac. Cas. (BNA) 504, 59 Empl. Prac. Dec. (CCH) § 41632 (7thCir. 1992).
