EEOC Ponders Older Workers’ Status as Age Law Turns 50

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By Kevin McGowan

The Age Discrimination in Employment Act changed the landscape for older workers in positive ways, but ageist stereotypes and employment practices persist that can exclude or discourage job seekers 50 and older, the EEOC heard June 14.

The ADEA, enacted in 1967, prohibits age bias against workers 40 and over and bars mandatory retirement for most jobs.

But “outdated assumptions” about age and work still deprive older workers of employment opportunities, EEOC Acting Chair Victoria Lipnic (R) said at a commission hearing to mark the law’s 50th anniversary.

Workers who lose jobs in their 50s or 60s can face longer periods of unemployment than younger workers and many involuntarily leave the labor force, witnesses told the EEOC.

The Equal Employment Opportunity Commission in fiscal year 2016 received 20,857 age discrimination charges. But only two of the 86 lawsuits the agency filed in FY16 were based on age discrimination.

“The ADEA should not be treated as a second-class civil rights statute,” said Laurie McCann, a senior attorney with AARP Litigation Foundation in Washington. She urged the EEOC to strengthen its age discrimination regulations and pick up its enforcement.

In fiscal 2016, the commission resolved 22,594 age discrimination charges through administrative means, obtaining $88.2 million in benefits for age bias claimants. It’s unclear why the EEOC filed just two lawsuits, but the administrative recoveries should be counted as part of agency enforcement, Lipnic told Bloomberg BNA June 14.

Unfavorable Court Treatment

The U.S. Supreme Court has narrowly construed the ADEA’s protections, compared with those under Title VII of the 1964 Civil Rights Act, McCann testified. A 2009 high court ruling made it harder to prove age discrimination claims than race or sex bias claims.

The court ruled that a worker alleging age discrimination must show it was the “but for” cause of firing or other adverse employment action. In contrast, a worker alleging sex or race discrimination can proceed if the unlawful bias was a “motivating factor,” even if the employer had other, nondiscriminatory reasons for the adverse action.

The ADEA doesn’t provide for compensatory or punitive damages, so private lawyers are reluctant to represent age bias clients if there’s no potentially large back pay award, McCann said.

Congress needs to amend the ADEA, but the EEOC also should clarify its protections and bolster enforcement, she said.

Researchers who tested how employers respond to resumes that are identical except for age found older applicants less likely to be called for interviews or hired, said Patrick Button, a Tulane University economics professor.

Women begin experiencing age bias at a younger age than men, he said. This suggests that “intersectional discrimination,” bias based on age and sex, is taking place, Button said.

Online applications sometimes require candidates to divulge their age or graduation dates as a condition of applying, McCann said. Employers that say they want candidates with no more than a certain amount of experience—setting “maximum experience” levels—also effectively discriminate based on age, she said.

Easing the Skills Gap

Older workers could be part of the solution for employers facing a “skills gap” in a period of low unemployment, said John Challenger, chief executive officer of Challenger, Gray & Christmas, an outplacement firm in Chicago.

“Smart employers do go to untapped areas,” which could help older workers with the needed skills and experience, he said. Older workers tend to stay with employers longer than younger workers, who are more inclined to move on to other jobs, Challenger said.

EEOC Commissioner Jenny Yang (D) also weighed in on the merits of mature workers. “There’s a strong business case for hiring and retaining older workers,” she said.

Promising Practices

An AARP study found that only 9 percent of companies with “diversity and inclusion” programs include age as a category, McCann said. Training hiring managers and supervisors that age is part of diversity is “probably the simplest way” to change attitudes and reduce bias, she said.

Other promising practices include making technology training broadly available, forming intergenerational work teams, and providing flexible workplace options that include “phasing down” from full-time employment, the witnesses told the EEOC.

The EEOC will keep its focus on age in the workplace throughout 2017, Lipnic said. Its website features a new section devoted to older workers and the law, which will be updated periodically.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

For More Information

The witnesses' written testimony is available at https://www.eeoc.gov/eeoc/meetings/6-14-17/index.cfm.

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