March 25, 2013
Suppose I'm a business — and what a handsome business I'd be! — that's interviewing people for a job opening. There are two finalists, one 27 years old, the other 52.
They have similar qualifications, albeit the older candidate has more experience. I hire the 27-year-old because that person will be around longer, and I'll get more from the investment I make in training.
That's a perfectly rational business decision.
It's also an illegal one.
Still, in these recent years of layoffs, downsizing and high unemployment, people in their 40s, 50s and 60s have learned that age discrimination is routine, regardless of its legality.
I've heard from dozens of readers who have gone unemployed for years because of their age. Often, more senior workers are the first to go in layoffs, and it's common to see them miss out on promotions. It breaks my heart. And it also angers me, because there's a law meant to prevent this — a law that lacks the teeth to be effective.
The Age Discrimination in Employment Act prohibits employment discrimination against anyone 40 or older. But according to Michael Harper of the Boston University School of Law, the act is nowhere near as effective as Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, gender and national origin.
In an article recently published in the Employee Rights and Employment Policy Journal, Harper wrote: "For no good policy-based reason, ADEA's prohibitions of age discrimination are more difficult and less attractive to enforce."
Furthermore, Congress and the Obama administration have done nothing to beef up the act, despite clear signs that age discrimination is on the rise. Harper cited in his article that 23,000 charges of age discrimination were filed with the Equal Employment Opportunity Commission in fiscal 2010, up by about 7,500 from 1997.
"I'm not criticizing any employer for trying to make money or for being rational," Harper said in an interview. "But we need enforceable regulations, because it's a collective action for our society. The society's interest is not in all cases served by what's rational for the individual employers."
I'd argue that many businesses's interests aren't served well either. By screening job candidates by age, a company wholly overlooks qualifications that might make a person a superior employee. Harper calls it "statistical discrimination," but I'll go ahead and call it short-sighted and more than a little dehumanizing.
Eric Matusewitch, former deputy director of the New York City Equal Employment Practices Commission and author of "The Managers Handbook on Employment Discrimination Law," noted that Title VII was amended in 1991 to include "mixed-motive cases." Basically, the plaintiff in a discrimination case only needed to show that his or her race or gender was part of the reason an employment decision was made.
But the ADEA was not similarly amended. In fact, the act was weakened in 2009 by a U.S. Supreme Court ruling that said age discrimination had to be the reason for a contested employment decision.
"That decision barred many older employees from the courthouse door," Matusewitch said.
In his article, Harper calls for a number of reforms to the ADEA that would make it at least as strong a deterrent to discrimination as Title VII. Those include allowing victims of age discrimination to sue for compensatory and punitive damages and making it easier to have age discrimination suits certified as class actions.
But would changes to this law make a difference, particularly when companies can discriminate based on age with relative stealth?
Matusewitch believes an amped-up ADEA would be a significant deterrent.
"Clearly employers would be put on notice that they have to be much more careful about their hiring decisions regarding older workers," he said. "It would raise their consciousness a great deal. You'd see a lot more training done, and I think it would have a major impact right away."
Unfortunately, given that we have a Republican-led U.S. House of Representatives that bristles at the mere thought of additional business regulations, Matusewitch and Harper say swift changes to the ADEA are unlikely.
That's a shame, and something I hope people will bring up with their representatives.
There is no reason age discrimination should be taken less seriously than any other form of bias. It's wrong morally, and it's stupid economically.
Companies may be cutting their bottom lines by pushing out older workers in favor of younger ones, but as more older workers remain unemployed, the cost to the country at large goes up.
"We lose potentially good workers and instead they have to claim more supports from society," Harper said. "You want to use the human potential to be productive, and you want to use it as long and with as many people as possible."
I don't want to see companies over-regulated, but there's a reason the ADEA is on the books. So shouldn't we make sure it's doing its job?
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