Discrimination Against Older Workers May Be Common but Hard to Prove

​More than 40 years ago, Congress enacted the Age Discrimination in Employment Act (ADEA), which forbids employment discrimination against anyone 40 years of age or older in the United States.

As the U.S. experiences a rapidly aging population, the ADEA may be more important than ever: In 2016, the nonprofit Population Reference Bureau projected that the number of Americans ages 65 and older would more than double, from 46 million to over 98 million by 2060. It estimated that by 2022, 27 percent of men and 20 percent of women ages 65 and older would be in the labor force, up from the current 23 percent and 15 percent, respectively.

But four decades after the ADEA became law, nearly two-thirds of workers ages 55 to 64 report their age as a barrier to getting a job, according to a 2017 survey by the AARP. A study in 2015 using resumes for workers of various ages found significant discrimination in hiring for the oldest applicants, according to a co-author 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.

But age discrimination is very difficult to prove, workplace experts say. Although age discrimination was alleged in about 23 percent of all charges filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2016, ADEA cases constituted only 2 percent of the cases that the EEOC lawyers felt had enough evidence in the allegations to file a lawsuit.

The things that employers say, write or insinuate about age can be so subtle that they don't provide a smoking gun that can prove discrimination, said Laurie McCann, a senior attorney for the AARP Foundation Litigation.

"Most employers … know enough not to say, 'You're too old,' or 'I'd rather hire a younger person for the job,' " she said. "In most cases, the individual does not know who was hired instead. Therefore, they cannot compare their qualifications with those of the person hired to determine if age bias may have been at work."

[SHRM members-only toolkit: Employing Older Workers]

ADEA Cases to Watch

The AARP notes that there are at least three relatively recent age-discrimination lawsuits that deserve the public's attention.

Cheryl Fillekes, a systems engineer who applied unsuccessfully for four different jobs at Google between 2007 and 2014, filed a lawsuit against the company in 2015. She claims that one Google recruiter told her to put her graduation dates on her resume "so the interviewers [could] see how old [she was]." Fillekes' complaint also points out that the median age for Google's workforce is 29 years, compared with 42.8 years for computer programmers and 41.7 years for computer-hardware engineers nationally. At least 269 other plaintiffs have signed on to the case.

Google has denied the allegations, stating that it has strong anti-discrimination policies. Two Google spokesmen did not reply to requests for comment.

In the spring of 2017, Texas Roadhouse, a national, Kentucky-based restaurant chain, agreed to pay $12 million and furnish other relief to settle an age-discrimin­ation lawsuit. The EEOC had filed suit on behalf of applicants the EEOC charged had been denied front-of-the-house positions, such as servers, hosts, server assistants and bartenders, because they were age 40 or older. As part of the settlement, Texas Roadhouse agreed to change its hiring and recruiting practices. Texas Roadhouse's press office did not reply to a request for comment.

In 2013, Spirit AeroSystems—a company in Wichita, Kan., that makes parts for airplanes—laid off 360 employees. Twenty-four of those workers have filed an age-discrimination lawsuit, arguing that the company manipulated their job-performance evaluations and subsequently fired them based on their age and to avoid having to pay the potentially expensive costs of their health insurance. Many more have joined the lawsuit.

According to the suit, prior to the layoffs, the company identified employees and their family members whose health care expenses made them "high-cost claimants." Many of the conditions that put employees into this category were illnesses more common among older Americans, such as diabetes, hypertension, heart disease and cancer.

Keturah Austin, a spokeswoman for the company, said that "Spirit is an equal opportunity employer and does not discriminate in its employment practices, including hiring and termination decisions. The company takes that responsibility very seriously. Reductions in force are never easy; however, all decisions are based on job-related, nondiscriminatory criteria."

Austin said the company would not discuss this particular lawsuit.

In addition to these cases flagged by the AARP, ProPublica recently reported that IBM slashed its U.S. workforce by as much as three-quarters of its 1980s peak, replacing a substantial share of those fired with younger, less-experienced and lower-paid workers and sending many positions overseas. In the past five years, ProPublica wrote, IBM eliminated the jobs of more than 20,000 U.S. employees ages 40 and over, about 60 percent of its estimated total U.S. job cuts during those years. The publication reported that the one confidential planning document stated the company needed to "correct seniority mix." ProPublica asserted that "in making these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination."

IBM employees tend to have a higher median age—38—than workers at other top tech companies, according to a report from Business Insider. In late March, according to one news report, the company notified a number of employees that they would be laid off in coming months and offered some the chance to move to different positions. On job-tracking site TheLayoff, some IBM workers whose jobs were cut indicated in their posts that they were veteran employees of the company.

An IBM spokesman declined to comment on the ProPublica report or to answer questions about how the company attracts or nurtures the careers of older workers.

Culture Tends to Be 'Forgiving' of Ageism

Jacquelyn B. James is co-director of The Center on Aging & Work at Boston College. Older workers frequently consult her, wanting to know if they have legitimate age-discrimination complaints.

For instance, James said, she recently heard from one man who had enjoyed a stellar career but wanted to change directions and enroll in a university's doctoral program.

"He was told by the program chair that his credentials were above reproach but that the university didn't want to invest in someone that old," James recalls. "Why would they spend their money on someone who may not be around that long?"

Yet among all the discrimination complaints that the EEOC investigates, age discrimination remains among the hardest to prove, despite what seem to be blatant examples like the one James related, said Corbett Anderson, assistant legal counsel at the EEOC.

"I think the culture is more forgiving of ageism than it is for some of the other, more-vile forms of discrimination," he said. "Age-based comments are … more-infused in the culture. So when those types of comments show up in a case, courts tend to view those comments a little differently—and perhaps that's subconscious—than if the comments were made, for instance, about someone's race."

James agreed: "Age-related comments are trivialized as merely stray remarks or office banter," she said. 

There's also the burden imposed by a 2009 U.S. Supreme Court ruling, which held that to prove age discrimination in the workplace, a plaintiff must show that age was the predominant reason for an employer's action.

"It's not enough to show that the employer was thinking about … age when making a decision," Anderson said. A plaintiff has to show "that the employee's age was determinative in the [hiring or firing] decision, not just that it played a role. That's a more difficult burden to meet."

Avoiding Age Discrimination

Workplace experts suggest that there are key steps employers can take to protect themselves from charges of age discrimination.

Anderson said it's never a good idea to suggest in a job advertisement that applicants need to be recent college graduates, have no more than five years' experience in the workplace or be "digital natives."

That last term, he said, suggests that the employer wants "someone who has a facility with social media and technology and computers and is using the phrase to refer to someone who was born into and grew up in an environment in which they acquired those skills."

Nor is it advisable to require that an applicant provide college graduation dates on a resume, he said.

Consider, also, whether your website is "age-friendly."

"Do you have pictures of people who are older?" James asked. "Show employees of all ages in company promotional materials."

Explicitly state in all recruiting materials that you're seeking workers of all ages, she suggested. "Don't brag about how many Millennials you employ. Mention qualities associated with older workers such as reliability and experience."

Ensure that the company's benefits are attractive to employees of all ages.  For instance, James said, if you offer child care benefits, make sure you also offer elder care benefits.

When recruiting, she said, ask yourself where you're looking for job candidates. "Are you just going to job fairs and colleges? Well, you won't find older workers there."

The interview process, she said, needs to be standard for all applicants, no matter their age. "Everybody needs to be asked the same kinds of questions. If you want to assess if an applicant plans to stay with the company for a while, ask every applicant where they see themselves in five years. Don't assume that only older applicants are likely to leave—to retire."

Finally, she suggested, take a cold, hard look at your biases.

"We all have biases," she acknowledged. "That older people aren't agile. That they're slow. That they're stuck in their ways. That they're pining for retirement. That they can't 'do' technology. That they can't adapt. That they're not productive. The list is long. The point is to recognize those biases."

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.