Public Comment

The Epidemic of Age Discrimination

Harry Brill
Friday November 17, 2017 - 02:52:00 PM

Several years ago researchers at Princeton University discovered a very unusual development. We have been accustomed to expect that as the years go by each generation lives longer than the previous one. However, these researchers discovered an anomaly, that the longevity of middle age whites -- ages 45-54 --has declined precipitously. The research showed that their marginal connection to the labor force -- high unemployment, low paying and temporary jobs -- has been causing them considerable pain and distress, which in turn has triggered poor mental and physical health. High suicide rates, overdosing on drugs, and alcoholism have resulted in a high death rate. The researchers, appropriately, call this phenomena "deaths of despair".

Yet the government's business friendly Department of Labor apparently doesn't see any serious problem for middle age workers. Its Bureau of Labor Statistics (BLS), serves as the principle fact finding agency for the federal government. According to the BLS statistics on the labor force, the unemployment rate last month of middle age workers (45-54) is only 2.7 percent. That is lower than the unemployment rate of any other age group. Incredibly, had the Agency's figures included only white middle age workers, the official unemployment rate would be even lower. If the BLS data was accurate, these white workers would be dancing in the street rather than suffering a miserable life and a higher death rate. 

In an ideal situation employers would be grateful to their long term employees. Some actually are. After all, many older employers have accumulated more experience and accordingly are more valuable. But too often they are treated like disposable objects because their cost to employers increases the longer they are on the job. That's why Congress passed in 1967 the Age Discrimination In Employment Act which prohibits discrimination against anyone who is at least 40 years of age.  

The evidence of widespread age discrimination submitted to Congress convinced both the House of Representatives and the Senate that age discrimination is rampant. According to the findings of a survey of older workers, two thirds reported that they have seen or experienced age discrimination. Even obtaining an interview can be very difficult. In an experimental study of age discrimination, employers were sent resumes which specified different ages of the applicants who were presumably applying for job openings. For applicants whose age placed them in the young category, 43 percent were granted interviews compared to only 16.5 percent of applicants listed as older. 

Not only do many workers age 40 and above experience discrimination. Incredibly, age discrimination has been trickling down. In the high tech industry employees in their thirties are being replaced by even younger workers. In fact, many who are being laid off are burdened with the humiliation and obligation of training their younger, less experienced replacements, including workers who have been recruited from foreign countries. The public has been told that they need to fill vacancies due to a shortage of American qualified workers. In fact, the infamous H1-B law requires employers to hire foreign workers only if they are unable to find skilled, experienced American workers. But enforcement for the most part has been lacking.  

The National Association of Manufacturers and the Chamber of Commerce attempted to prevent the enactment of legislation to outlaw age discrimination. Although they didn't succeed, important concessions were made. Older workers were not included in the Civil Rights Act of 1964, which outlawed discrimination based on race, color, religion, sex, and national origin. The Age Discrimination In Employment Act, which was passed in 1967, is weaker than the Civil Rights Act. Among the differences, the law makes obtaining large settlements for the aggrieved much more difficult. Also the Act legally obligates firms with at least 20 employees. The Civil Rights Act applies to firms with only 15 employees. 

Moreover, in a major Supreme Court age discrimination case, a slim majority ruled that if an aggrieved employee claims being a victim of age bias, the employee must prove that the discriminatory act was the crucial factor for their grievance rather than just one of many factors, Obviously, this places a tremendous burden of proof on employees. In contrast, plaintiffs who are covered by the Civil Rights Act just have to prove they were discriminated against regardless of any other factors that may have contributed to the employer's decision. 

Generally speaking, justice for any aggrieved group is difficult to achieve. But it is almost impossible for older workers. A researcher found that in one year when there were nearly 23,000 complaints of age discrimination, only 12 cases were allowed to proceed! But why are age discrimination plaintiffs treated so poorly. The explanation is straightforward -- older workers are far more costly than other employees. More years on the job has increased their earnings. Also, providing health insurance for older employees is more expensive. And pension costs are far more expensive for companies with an older work force. So many businesses have been willing to resort to almost any means to cut the size of older employees. 

Take for example how Hewlett Packard dealt with the financial burden of retaining older workers. Several years ago the company, claiming that it had an oversupply of employees, laid off 85,000 employees to cut costs. However, it did not announced that it replaced many of these laid off employees with thousands of younger workers. If and when a company rehires workers, there is no legal requirement to give preference to those who have been laid off unless it is stipulated in a collective bargaining contract. 

Rather than being rewarded for longevity on the job too many workers are getting fired only because they are getting older. Moreover, the problem of age discrimination is likely to get worse. At the beginning of this century, older workers made up 25 percent of the labor force. According to the AARP older workforce by the year 2022 will reach 35 percent of the workforce. The problem of age discrimination is especially a problem when the economy declines. According to Patricia Barnes, a former judge and author of books on age discrimination, "Every time there is a recession, there is a pattern of age discrimination". As Barnes commented, many older workers join the ranks of the long term unemployed. If and when they get jobs afterward, they are low paying or temp jobs. These workers are then forced into early retirement and live in poverty or near poverty for the rest of their lives. 

To make matters worse, being a victim of age discrimination does not preclude being simultaneously also a victim of other prejudices that employers hold. One study, for example, found that although some older laid off employees got their jobs back, women were less likely to be rehired. And even being employed by an enterprise that has a liberal reputation is no assurance that its older employees would be treated fairly. Older black women have filed a law suit against the liberal New York times for not practicing what it preaches. They complained that that they were repeatedly passed over for promotion in favor of younger white employees. An additional complaint is that despite the experience and length of service of these older, minority women, young white employees are paid higher salaries. 

When the Supreme Court decided to place serious obstacles in the path of those who challenge age discriminatory practices, several members of Congress expressed their strong disappointment. Yet this body nevertheless has done nothing about it. So as a result of the role of both Congress and the judiciary, older workers have been legally reduced to second class citizenship. What then are the options for obtaining justice? The Age Discrimination In Employment Act should be repealed, and age discrimination category should be incorporated into the Civil Rights Act of 1964 where it belongs with other protected groups. Also, It is immensely important that working people not play off against each other. Instead, workers and their allies must engage in an ongoing and aggressive campaign to persuade Congress and other relevant bodies to enforce the legal rights of all workers, regardless of age, race, ethnicity, religion, and gender. Employers must be persuaded that respecting the legitimate rights of working people is a deeply moral as well as a political issue.