Age discrimination complaints on the rise

Courts making it tougher to win lawsuits in U.S.

CHICAGO (Reuters) — Older Americans are being urged to repair their retirements by working longer. But it's difficult to do in a tough economy, and one cause is illegal age discrimination by employers.

The number of age discrimination complaints filed annually with the U.S. Equal Employment Opportunity Commission, or EEOC, surged during the recession of 2008, and in 2012 it was still running 43 per cent higher than it was as recently as 2000.

The economy's health is a major driver of age discrimination claims, says Laurie McCann, a senior attorney at the AARP Foundation who specializes in age discrimination. "In an economic downturn, we've always seen older workers bear the brunt."

Some employers have a knee-jerk reaction to cut more experienced, older workers, McCann says. "Maybe they can cut one older worker instead of two younger ones," she says. "Sometimes it's a false stereotype that older workers are less productive."

The number of complaints may also be rising simply because so many older workers are remaining on the job. For example, the labour force participation rate among workers age 65 to 69 is 33 per cent this year, up from 20 per cent in 1993, according to U.S. Bureau of Labor Statistics data.

But the courts have not helped, either. A 2009 U.S. Supreme Court decision (Gross v. FBL Financial Services) increased the burden on workers to prove discrimination.

This month, the high court is expected to rule on another case that could make it even tougher to win discrimination suits. University of Texas Southwestern Medical Center v. Nassar is not directly about age — it deals with an allegation of workplace discrimination due to national origin. But it could have implications for age discrimination cases, too, because it could make it more difficult to win cases involving retaliation by employers against workers who complain to them about bias.

Age discrimination is illegal under the Age Discrimination in Employment Act of 1967 (ADEA). The law prohibits treating job applicants or employees who are over age 40 less favourably because of age. (The law applies to employers with 20 or more workers.)

Formal complaints about age-bias job terminations far outnumber cases of hiring discrimination. Last year, just 15 per cent of all complaints filed with the EEOC alleged discrimination in hiring. But that's because hiring discrimination is much more difficult to prove than in termination cases. "We think hiring discrimination actually is much more prominent than what the statistics show," says AARP's McCann.

Generally, a claim must be filed within 180 days of the day the discrimination took place. You can proceed to file a lawsuit after 60 days, but you may also go to voluntary mediation with your former employer.

If you think you've lost your job due to age discrimination, take a cautious approach. Under the ADEA, you'll be given a list of job titles and ages of any other workers losing their jobs, and those who were not laid off. If the list of departing workers looks suspicious, consult an attorney — and hold off on signing any waivers of your right to sue presented by your employer.

"Often, these waivers are tied to slightly better severance benefits, but it makes sense to take your time," McCann says. "That gives you time to review the termination list, and also to talk with friends and colleagues who are still on the job and might have more information on layoffs."

She also advises older workers to be proactive in protecting against age bias. "Don't allow yourself to become obsolete, and don't personify the stereotype — mainly, that older workers are just taking up space until they can retire," she says.

"Volunteer for assignments, take the lead on things. Be indispensable, and make sure you stay up to speed on new technology and take advantage of any training your employer offers."

If you're still on the job and worry that you may face age discrimination, start keeping records. "We tell people to keep a diary," McCann says. "If you're in a meeting and someone makes an age-related comment, take note of who else was in the meeting who could testify on your behalf later."

It also doesn't hurt, she adds, to let your employer know you're familiar with the ADEA's protections. That applies especially your employer's human resources department, which is most likely to be familiar with the law.

One caveat: be careful about this approach if you think it could accelerate a dismissal. "There's no blanket approach," McCann says. "You have to know your own environment.

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