Age Discrimination Claims Increasing...But Also Harder to Prove

Growing up, most of us were taught to respect our elders. Recent trends, however, show that many people may have forgotten how they were raised. A recent online Newsweek article highlighted not only this disturbing trend but also how much more difficult it is for age discrimination victims to prevail.

According to the article, the U.S. Equal Employment Opportunity Commission recorded a seventeen percent (17%) increase in age-discrimination complaints since the current recession began in 2007. The article points out that as the economy suffers, companies usually lay off older workers (i.e. higher wage earners) first. We've often encountered cases like this in our practice - companies can not continue with their current wage costs and often seek to reduce those costs by terminating their highest wage earners. Most times, these high wage earners are the oldest workers. As the article points out, these claims are the easy claims to identify even when wages are used as a proxy for age.

As the article states, the more difficult age discrimination claims to identify and prove are those claims involving the hiring process. Most times, a rejected hire only learns that she or he has not been hired but neither learns the reason nor the identity of the individual who did get hired.

The Newsweek article also pointed out there are professions where age discrimination can be most common. One such area is in the Information Technology field. A recent article in ComputerWorld discussed how the nature of the information technology field itself pushes out elderly workers. The article attributed this push-out to high wages for older workers, the devaluation of experience and skills in favor of longer hours and higher work production, and the desire for laser-like focus on particular projects uninterrupted by "adult responsibilities" like childcare and families.

To make matters worse, all these age discrimination claims now have a much larger hurdle to overcome. In 2009, the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services, Inc. (we previously discussed that decision here). As a result of that decision, individuals claiming age discrimination now must prove that age was the sole (or "but for") cause of the alleged discrimination. As the Newsweek article points out, this is extremely difficult to prove because so many factors can drive an employer's decision.

So what should we take away from all this? When examining cost-cutting measures, employers should be careful that they do not create an age discrimination claim and workers should strive to stay relevant and productive to avoid becoming a "cost saver." In any event, just as in life, we should strive to respect our elders in the workforce. More often than not, experience and wisdom matter.

Do Anti-Discrimination Laws Actually Have a Reverse Effect?

We recently came across a passage about the law of unintended consequences while reading the book Super Freakonomics. One particular paragraph noted that while the Americans with Disabilities Act (ADA) was passed to safeguard disabled workers from discrimination, data shows that there has actually been a net decrease in jobs for disabled Americans. Specifically, the book claims "[a]fter the ADA became law, employers were so worried they wouldn't be able to discipline or fire bad workers who had a disability that they avoided hiring such workers in the first place."

Do you believe that anti-discrimination laws actually have unintended consequences like those outlined in Super Freakonomics? Have you actually encountered any such unintended consequences? Do you think anti-discrimination laws are still necessary?

Paul Invited to Join Dallas Bar Foundation Fellows

We here at The Coles Firm P.C. would like to congratulate Paul Simon on his recent invitation to join the Dallas Bar Foundation (DBF) Fellows. The Dallas Bar Foundation provides financial support for law related research, publications, and forums, provides law related scholarships and education, and provides charitable and legal aid for the impoverished. Since 1981, the DBF has awarded more than $4.1 million.

DBF Fellows are attorneys who have demonstrated a high ethical standard and a commitment to the cause of justice and the welfare of the community. Election to the Fellows constitutes a high professional honor and we congratulate Paul on this great accomplishment.