Fifty years after Congress prohibited discrimination in the workplace on the basis of age, more than three-fourths of older American workers surveyed have reported that their age was an obstacle in getting a job.
Six out of every 10 older workers have seen or experienced age discrimination in the workplace, and 90 percent of those say it is common. African Americans/Blacks report much higher rates of having experienced age discrimination or knowing someone who had, at 77 percent, compared to 61 percent for Hispanics/Latinos, and 59 percent for Whites. More women than men also say older workers face age discrimination.
These are among the findings of a report issued on June 25 by Victoria A. Lipnic, Acting Chair of the U.S. Equal Employment Opportunity Commission (EEOC), on the State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA) of 1967. The ADEA is a federal statute that was enacted to prevent and stop arbitrary discrimination against employees over 40 years of age, and it requires employers to consider individual ability, rather than assumptions about age, in making an employment decision.
The EEOC is the federal agency charged with enforcing federal laws against discrimination in private sector employment, and since 1979 it enforces the ADEA, previously under the jurisdiction of the U.S. Labor Department.
“As of this month, the nation is experiencing its lowest unemployment rate in 18 years,” Ms. Lipnic noted. “But age discrimination remains a significant and costly problem for workers, their families, and our economy.”
Throughout the history of its ADEA litigation program, many of the EEOC’s major ADEA cases have focused on discriminatory reductions-in-force, denial of benefits, and mandatory retirement policies. In the past decade, the EEOC has also focused on challenging discriminatory hiring policies, both individual and systemic.
The Lipnic Report notes that both the age and diversity of the U.S. workforce has increased considerably over the past decades and will continue to increase in the coming decade. Since 2000,the participation rate of both women and men age 55 and older in each of the four-major race and ethnicity groups — Black, White, Hispanic, and “Asian and other” — has increased. The percentage of the labor force age 55 and older consisting of racial and ethnic minorities has grown substantially, and is expected to continue to do so into the next decade.
Today, according to the Report, more than 42 percent of older workers are in management, professional, and related occupations, a somewhat higher proportion than that for all workers. Thirty-six percent of older workers are engaged in blue-collar work. Workers age 65 and older are in part-time jobs at more than double the rate of younger workers, but they are increasingly seeking and obtaining full-time employment. Finally, an increasing number of older workers are self-employed; the rate of self-employment is much higher for older than for younger workers.
According to Ms. Lipnic, “Unfounded assumptions about age and ability continue to drive age discrimination in the workplace. Most people have specific negative beliefs about aging and most of those beliefs are inaccurate. These stereotypes often may be applied to older workers, leading to negative evaluations and/or firing, rather than coaching or retraining.”
“Decades of social science research document that age does not predict one’s ability, performance, or interest,” according to the Lipnic Report. “Aging and its effect on cognitive abilities is highly individualized, as ability, agility and creativity vary widely among people of the same age. Many older people out-perform or perform as well as young people, and intellectual functions can actually improve with age.”
The largest and most recent field study of age discrimination in hiring was conducted in 2015 and involved over 40,000 applications for over 13,000 jobs in 12 cities across 11 states. It found evidence of age discrimination against both men and women, with older applicants — those age 64 to 66 years old — more frequently denied job interviews than middle-age applicants age 49 to 51. Women, especially older women but also those at middle age, were subjected to more age discrimination than older men. Older women often experience both age and sex discrimination in the workplace.
Age discrimination can also result in significant monetary costs for employers. The largest ADEA suit to date, Arnett v. California Public Employees’ Retirement System, settled for $250 million. Sprint Nextel settled an ADEA collective action for $57.5 million, and an age discrimination lawsuit brought by older workers at the Livermore National Laboratory settled for $37.5 million in 2015. The EEOC resolved its own lawsuits involving mandatory retirement policies against Johnson & Higgins for $28.1 million and against Sidley and Austin for $27.5 million. The 3M company resolved three-related ADEA lawsuits for $15 million, and recent EEOC cases challenging age discrimination in hiring against Texas Roadhouse settled for $12 million and against Seasons 52 Restaurants for $2.85 million.
Today, every state except South Dakota has a law prohibiting age discrimination in the workplace. In Florida, the Civil Rights Act of 1992 prohibits age discrimination in employment without setting a 40-year-old threshold. The Florida statute makes it unlawful for employers to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age.
Ms. Lipnic’s Report recommends that in order to prevent age discrimination, employers include age in diversity and inclusion programs and efforts. A study by PriceWaterhouseCoopers found that 64 percent of firms surveyed in 2015 had diversity and inclusion strategies, but only 8 percent of those included age.
“Experts also recommend an assessment of interviewing strategies to avoid age bias,” the Lipnic Report observes, “as studies and experience show that interviewers tend to favor job candidates who remind them of themselves. An age-diverse interview panel for prospective employees may be viewed more positively by candidates and may be less vulnerable to implicit bias. Training interviewers as to how to frame age-neutral questions and using a standard or structured process can help avoid age bias throughout the interview process.”
“The ADEA,” the Lipnic Report concludes, “has helped to bring equality and fairness to the workplace for older workers. But age discrimination persists based on outdated and unfounded assumptions about older workers, aging and discrimination. No one should be denied a job based on stereotypes and it’s time to put these outdated assumptions to rest. Ability, experience, and commitment matter, not age. To achieve the promise of the ADEA, it’s time to recognize the value of age diversity in the workplace and the benefits of a multi-generational workforce.”
The full Lipnic Report is available free online at the EEOC’s website.
