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.