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Age discrimination is a barrier to both hiring and further economic growth

By Pamela Wolf, J.D.

At a meeting on June 14, experts told EEOC Commissioners that persistent age discrimination and stereotypes about older workers continue to channel older workers out of the workforce, limiting further economic growth. At the meeting, entitled, “The ADEA @ 50—More Relevant Than Ever,” Acting EEOC Chair Victoria A. Lipnic, observed, “With so many more people working and living longer, we can’t afford to allow age discrimination to waste the knowledge, skills, and talent of older workers.” Lipnic said that outdated assumptions about age and work deprive people of economic opportunity and stifle job growth and productivity.

Age as a hiring barrier. Nearly two-thirds of workers age 55-64 report their age as a barrier to getting a job, according to a 2017 AARP survey cited by the EEOC in a press release. A comprehensive study in 2015 using resumes for workers at various ages found significant discrimination in hiring for female applicants and the oldest applicants, according to a coauthor of the research, Patrick Button, Assistant Professor of Economics at Tulane University and a researcher with the National Bureau of Economic Research Disability Research Center.

Strengthening protections. Laurie McCann, a senior attorney for AARP Foundation Litigation, cited hiring discrimination and mandatory retirement as persistent problems that older workers face across industries. She called on the EEOC to strengthen ADEA protections and enforcement. “The ADEA should not be treated as a second-class civil rights statute,” McCann told the Commission. “On this 50th Anniversary of the ADEA, AARP urges the EEOC to take bolder action to ensure older workers are treated fairly at work.”

Pending legislation. Notably, the Supreme Court’s 2009 ruling in Gross v. FBL Financial Services, Inc., made it harder for plaintiffs to prove age discrimination in employment. Under Gross, plaintiffs must prove an age discrimination in employment claim by demonstrating that age was the sole motivating factor for the employer’s adverse action. The Gross standard is inconsistent with the mixed-motive standard of proof that Congress reaffirmed in the Civil Rights Act of 1991, the sponsors of recent legislation that would revert to the pre-Gross standard contend.

The Protecting Older Workers Against Discrimination Act (H.R. 2650; S. 443), introduced in the House in February and the Senate in May, would level the playing field for older workers by restoring the pre-2009 legal standard for age discrimination claims, a move that sponsors say would ensure all victims of discrimination, including older workers, can have their claims adjudicated fairly.

U.S. economic health suffering. Citing Bureau of Labor Statistics data, John Challenger, of Challenger, Gray & Christmas, Inc., told the Commission that a combination of societal tradition and flawed business practices “that channel older people out of the workforce, especially skilled workers, is damaging the economic health of our country.” He suggested that if more older workers remained in the workforce, it would significantly reduce the skilled worker shortage in the United States.

Myths and stereotypes. Sara Czaja, director of the Center for Research and Education on Aging and Technology Enhancement, told the Commission that research refutes assumptions that older workers are less productive, technophobic or inflexible. She pointed to the practical ways in which employers could do a better job of integrating older workers into the workforce by recognizing their value and by matching their skills and abilities with work environments.

“Unfortunately, numerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people,” Czaja said. “These stereotypes can also prevent organizations from realizing the wealth of positive assets, such as wisdom, experience, and reliability that older workers can bring to the table.”

Older workers not going away. Experts anticipate that the older worker population will continue to grow, noted Jacqueline James of The Center on Aging & Work at Boston College. She said that “employers have been slow to innovate,” as it relates to addressing older workers’ preferences in recruitment and hiring, retention, and preventing age bias. The Center and AARP teamed up to develop a benchmarking tool to help employers manage the current multigenerational workforce.

Record still open. The Commission said that it will hold open the June 14 meeting record for 15 days, and invited audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: Commissionmeetingcomments@eeoc.gov.

The biographies and statements of all panelists, as well as a video of the meeting will be available in a few days (and a full transcript within a few weeks) at https://www.eeoc.gov/eeoc/meetings/index.cfm.