Why Charges of Age Discrimination Are On The Rise

age discriminationThe basis of the decision is that you can't do that. When a man named Anthony Brunt was demoted by his employer -- the Water Systems utility in Lexington, Tenn. -- he cried foul.

Sensing that the move had little do with his on-the-job performance, Brunt filed suit alleging that the Lexington utility was engaging in age discrimination. Brunt's case eventually made its way to the federal courts, which ruled in his favor on July 25 for more than $450,000, according to an AP report.

Brunt, who was eventually let go before his case was decided, declined to comment to either the AP or The Jackson Sun. Further calls to his legal representation by AOL Jobs to seek comment, as well as to find out his age, also went unanswered.

But what is known of his story is nevertheless instructive. In claiming that he was the victim of age discrimination, Brunt experienced an injustice that's common to his era; charges of such cases with the U.S. Equal Employment Opportunity Commission have crept up since 2006. The tally of such charges from four years ago was 16,548, while last year saw 23,264.

And the uptick cannot simply be chalked up to a rising numbers of seniors in America as more baby boomers enter late middle age, says the American Association for Retired Persons (AARP).

"When the economy tanks, you definitely see age discrimination suits go up," says Laurie McCann, a senior attorney with the AARP.

In speaking to AOL Jobs, McCann says that it's to be expected that staff cuts start with common rationales for putting the eldest workers at the top of the list, beginning with a perception that older workers are both less productive and likely to retire soon. And while it's often the case that such staffing decisions are more often grounded in stereotypes than actual job performance, McCann notes that a third likely rationale is fundamentally flawed.

"In terms of benefits and insurance, it's a perception that seniors cost more," she says.

Such a view, she notes, fails to recognize a major stipulation of the landmark 1967 Age Discrimination in Employment Act (ADEA). The act, which was signed during the administration of Lyndon Johnson as part of his Great Society program, mandates that companies can only reduce benefits if the cost of services is the same across age brackets. In other words, companies aren't allowed to simply cut back on the benefits they most provide just because their staff is comprised of healthy 24-year-olds. Rather, what is in flux is who is called on to absorb the costs in the event of a claim and, indeed, older workers can be called on to carry the burden themselves.

Not surprisingly, advocates for older workers are just as concerned about that demographic's job loss as for its prospects for re-entry into the workforce.

"The whole tenor of the feeling of older workers is that it's a much more difficult road," says Merrick Rossein, a professor at the CUNY School of Law in New York City, and author of "Employment Discrimination Law and Litigation," in an interview with AOL Jobs.

In fact, unemployment for those over 55 clocked in at 7 percent in June, 2.2 points behind the national average. That number, however, may be skewed by a disproportionate number of potential job seekers in that age bracket who have simply given up. The average duration for their unemployment is 52.4 weeks, as compared to 35.6 weeks for those below 55. (That figure for the above-55 group represents more than a doubling of their duration of unemployment from December 2007).

"This will be a crisis that will be known for how older people were laid off in an economy in transition," Rossein says.

Indeed, in the interest of cutting down on costs amid the worst downturn in a generation, companies have ruffled enough aging feathers to generate that 40.5 percent uptick in charges of age discrimination with the EEOC since 2006. But as glaring as that figure is, the AARP's McCann says that the most significant figure of all is a different one altogether. Of all the charges presented to them, the EEOC is only capable of filing suit on .05 percent.

"The EEOC is underfunded and understaffed," she says. "We must rely on private citizens to bring suits. And it is obviously very expensive for any individual to go through that process. So that means not enough is being done."

Advocates for older workers also note that recent Supreme Court decisions have only amplified the challenge of seeking protections in the workplace.

In 2009, the high court affirmed an Appeals Court's decision to reverse a lower court's ruling in favor of Jack Gross, who had sued FBL Financial Service arguing that a reassignment was a de facto demotion put into place because of age discrimination.

The 5-4 ruling heightened the burden for proving age discrimination to the level of a "but for" standard, meaning age must be demonstrated to have been a deciding factor. Reacting to the ruling, an editorial in The New York Times referred to the standard as an "ultrahigh hurdle."

Writing for the court, Supreme Court Justice Clarence Thomas grounded the ruling in the original text of ADEA.

"Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor," he wrote for the slim majority.

Observers have noted that gender and race now receive greater protection as compared to age. Both of those categories are spelled out in Title VII of the 1964 Civil Rights Act, which Thomas alluded to in his opinion.

The Gross decision attracted the ire of many progressives. Plans to counteract the ruling through Congress were launched, but were placed on hold amid congressional feuding over the debt, according to the AARP.

"We are at a time where the courts are not particularly sympathetic," says Rossein. "And this Supreme Court is the most pro-business since Roosevelt was in office."

Next: Fired 80-Year-Old Teacher, Lillie Leon, Fights To Get Her Job Back



Don't Miss: Companies Hiring Now




Stories from AARP

Add a Comment

*0 / 3000 Character Maximum

116 Comments

Filter by:
Belinda

People are still unemployed because of their age, this is the majority of those still unemployed, the main reason I feel is because of Obama Care and not just because of the economic collapse years back. No company wants to hire older workers because of the health care reform and the cost that comes with Obama Care forced on business to offer their employees. What do you think about this theory?

January 09 2014 at 6:37 PM Report abuse rate up rate down Reply
j

hey! how about brushing up on journalism 101? where's your intro? how about getting basic facts into the article, like the guy's age and the name of the employer? and your transitions are a mess!

August 05 2011 at 4:44 PM Report abuse rate up rate down Reply
Anthony

The fact is that the truth hurts. She is 80 years old dealing with 5-6 year old children while needing a cane to walk. If she cannot walk the kids across the cafeteria to the bathroom what is she going to do with the kids in the event of a fire or any other emergency. She was earning 100K + a year so her home should be paid off already......... Retire and give the job up to a young person who just came out of college , is paying for a new home and a young family. Our economy is in the bucket because of the baby boomers who may not have created the problem but are surely adding to it by being selfish and staying at a job because they like it and not because they need it!

August 05 2011 at 4:06 PM Report abuse rate up rate down Reply
jerzfox

They'e not supposed to ask your age except if you're over 18. BUT---they want to see your driver's license ostensibly to see if you're legal to work in the US, but I think it's a way for them to learn your age through the back door and turn you down on the basis of your age without you having proof of age discrimination.

August 05 2011 at 3:52 PM Report abuse +2 rate up rate down Reply
oken1

A few years back I hired a guy in his early 60s into my company in August. Almost immediately there were problems with his performance and his interactions with the public. I received complaints about him from other employees and the public on a daily basis. My health was failing and I needed lung transplants to survive, so I counciled the guy quite regularly, but was in no position to let him go. In December I had surgery and was back to work in April. Things came to a head and I finally let the guy go. Two weeks later I was hit with an age discrimination lawsuit based on the fact that I had let him 63 yrs old go, but kept a 58 year old guy( a perfect employee)(I was 55 at the time).. Even though I had talked to the guy about his deficiencies on a daily basis, I never documented our discussions or had him sign anything. Rather than sustain the costs of court and having to call in a dozen witnesses to state that the guy was a screw up, I ended up settling out of court for a few thousand. This law can be a license to steal.

August 05 2011 at 1:27 PM Report abuse rate up rate down Reply
mwsumchai

I filed an age discrimination claim last month as a teacher in the bay area with just cause.

August 05 2011 at 1:06 PM Report abuse rate up rate down Reply
Marrieah

The sad truth is the perception among younger folks is that the older generation can't produce after a certain age. Not only do older folks produce as much or even more than the younger groups, but older folks do so much more efficiently and proudly.
Many of the younger folks I work with come into the work place with a sense of entitlement. Many act as if they are doing their employees a favor just because they show up. The only thing that's important is seemingly the paycheck. Although I also work to get paid, in my line of work, I go out of my way to make sure that my customers don't want to go elsewhere to find more competent clients. My younger counterparts' attitude is 'so go'. They want a job, but don't want to work. I see it also in teaching. Just because these administrator have gone to college and got degreed doesn't mean a thing. Educated Fools is what I call them. To not have and use common sense in today's world, just as it has always been is idiotic. I really feel sorry for todays' generation. I guess this nonsense seen in movies and on TV is what they feel is the correct way to act. They should remember what happened to Charlie Sheen. It pays to be respectful even if the other party is an ass.

August 05 2011 at 10:51 AM Report abuse +2 rate up rate down Reply
1 reply to Marrieah's comment
Joyce

Well said, Marrieah...well said!

August 05 2011 at 12:26 PM Report abuse rate up rate down Reply
Kate

There is defineately age discriminaton. What bothers me is that one of the ways the government is helping to support the Social Security System is to raise the retirment age. Now let's say you are laid off and over 50 and under 59 1/2. Since we all know there is no question about age discrimination what do these people do when they can't draw retirement (if they have it ) and they can't draw social security? If they have a retirement account and draw it before 59 1/2 then they are penalized and therefore the number of years your money lasts is cut back. What happens when you run out of money?

Besides that many people want to work and are very skilled and competent well into their eighties. Some of them have given up like myself (I have a BA in case you are wondering). We are not counted as unemployed, by the way, otherwise unemploymnet would be double digit. I have many aquaintances and friends who are also unemployed. Many have said that many employers are blantantly discriminating based on age. One friend went to an interview and was told sorry we are looking for someone younger. Another friend saw an ad that stated over 50 need not apply.

We may have laws in this country but they are not enforced for age, race or gender and if you have no job it is difficult to file suit on your own. The worse part is how when companies pick employees in this way it ends up hurting the applicant and the company. One of the reasons our cost for everything is on the rise are because of the foolish decisions that companies make.

August 05 2011 at 10:11 AM Report abuse +1 rate up rate down Reply
1 reply to Kate's comment
Marrieah

Even though the government is going to raise the age one can get SS, always bear in mind, that the govt wasn't trying to pay back the monies it got for SS anyway. When SS was implemented in the 1930s, the age of retirement was 62. The age expectancy was maybe 65. So that meant that the govt wasn't planning on paying more than maybe 2-3 years of benefit for most people anyway on an average. When the baby boomer started coming in, the govt calculated the funds that this group could generated to the coffers, so the age limit was kept there for years. But the govt also started dipping into the funds that the working baby boomers generated and it was at lot. From those funds, disablity, ATDC, and other programs came into being. Those programs generated jobs with in term produced even more money for the coffers.
Now that the boomers are living longer and the govt having already spent the money that was generated by them, thry figure they have to up the retirement age to 65/67. It will be increased farther as time goes by. I can see the retirement age at 75 years because folks are living longer.

August 05 2011 at 11:01 AM Report abuse +1 rate up rate down Reply
rmhead1962

I know for a fact that some employers will only hire younger people over more experienced ones and it's called a loop hole and they get away with it which is crap and it has to stop! Just because we're older don't mean slower,been there and done that so don't dare tell me I'm to old you might find how nasty people like me might get if told that and find yourself a law suite, so save it for the i can do it all who want to play generation their the ones costing you not us!

August 05 2011 at 9:44 AM Report abuse +1 rate up rate down Reply
dearrunfarm

. My school got a new Principal. Her girlfriend was the Director of Education for the county. They strolled the school making their relationship obvious. Downtown their relationship was well known.
One of the older teachers accidently walked in on them in a tender moment AT SCHOOL. They harrassed this teacher into a heart attack and eventually got her fired. She passed out in the parking lot and the Assistant Principal looked at her in the dirt and smirked. The kitchen staff got her a chair and I took her to the hospital.
One of the issues was that she didn't "walk her morning hall duty properly"(she used a cane) She had rheumatoid arthritis and her many health problems were documented by her doctors and registered with the School Board.
These two "women" had all their girlfriends "observe " her,-and after 25 years of good teaching she was now a worthless teacher(she had a 4"notebook of newspaper acolades). Social Security immediately put her on disability and it was found that she passed out due to a brain tumor.
The(Black )"Union" President said they did not "protect" inferior teachers( Inferior WHITE teachers.)
The "Union" demanded a "qualified"(certified teacher) aide for a BLACK teacher that did NO lesson plans,screamed directions to the children in un-understandable language, and never left her chair except for lunch.
When one of these "women" attacked the job of a BLACK man they were "let go".
The EEOC found in her favor to the tune of over a million dollars.
The School Board said she would have to sue for it and she had no money. They offered $10,000. to settle.
I have nothing but scorn for the Teachers Union that took her money for years.
Anybody want to write a book ?

August 05 2011 at 9:26 AM Report abuse -1 rate up rate down Reply

Search Articles

Top Companies Hiring

Week of Oct 26 - Nov 2
View All

Picks From the Web