Are You Among Those Workers Declared “Past Your Pull Date”?

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In September 2013, we wrote a piece called “LOGAN’S RUNWAY: Age Discrimination in the Workplace […]” which dealt with age discrimination in hiring and employment. Apparently, the practice is alive and well, as underscored in a recent survey utilizing fabricated resumes.

We hear from more callers expressing the belief that they have been victims of age discrimination than those who believe they were victims of sex, race or religious discrimination combined. Why? It is partly because jobs in general are at a premium, even though a decade has passed since the “Great Crash” of 2008. Right after the housing market collapsed, there were upwards of 350 applicants for every small clerical job posted on Craigslist. With that much competition, employers took advantage of the market, in many cases hiring recent college graduates for low-skilled work at even lower pay. Hiring and recruiting departments are staffed with people, and people have biases. Some see older candidates as less able to perform more physical tasks, or set in their ways and difficult to train. They may also hesitate because mature people applying for entry level positions are often largely overqualified, and perhaps more likely to give notice as soon as they find a better job.

Whatever the cause, this kind of ageism is a problem, as underscored by a recent study published by the San Francisco Federal Reserve Bank, which found a disturbing, but undeniable, trend. Scientists crafted approximately 40,000 fake resumes, all identical except for the age and gender of each applicant. These were then submitted online in response to approximately 13,000 entry level or low-skilled job postings. The results, captured in the graph below, illustrated an enormous bias against applicants over 60, and in particular women in that age group seeking administrative work .

“It’s still the case that age discrimination is not even close to the same taboo as other forms of discrimination. People tell age jokes who would never tell race jokes.”

With a generation of Baby Boomers all turning 60+ over the next decade, and rhetoric out of Washington revolving around the repeal of the Affordable Care Act, coupled with drastic cuts to Medicare, America’s mature workforces may find themselves faced with a burgeoning need for employment, as dwindling resources within the system conspire to force America’s retirement-age professionals to remain employed throughout much of their “retirement years.” If the ACA is dismantled, insurers are likely to return to a process of selectively insuring only the healthiest among us, leaving many older Americans abandoned and without an external safety net. But if one cannot obtain even a low-level administrative job, then the reality becomes daunting. Even the contract work jobs in the “gig economy,” so often touted as the solution for older workers, force workers to maintain their own health insurance or go without.

According to the study, the problem that needs addressing is getting employers to see the value in hiring a mature worker. David Neumark, the author of the study, had this to say, “It’s still the case that age discrimination is not even close to the same taboo as other forms of discrimination. People tell age jokes who would never tell race jokes.”

Neumark goes on to suggest that the government may want to instigate a national affirmative- action quota for mature workers, in order to encourage the inclusion of those over “a certain age” in the workforce. He postures that “We have set goals to end underrepresentation of women and minorities, why not “symmetrical” goals leading to the inclusion of older workers over time?” Another tool he says can be used is for the states to enact laws with more force and effect than the protections offered under federal laws.

The Law as it Applies in California

The federal law governing this type of discrimination is the Age Discrimination in Employment Act (ADEA). It prohibits employment discrimination against persons 40 or older, and applies to companies with 20 or more employees. California’s age-discrimination prohibition is found in the Fair Employment and Housing Act (FEHA), and it has a broader rule for its application to employers, requiring anyone with five or more employees to comply. This law is why you will see a release of all potential age discrimination claims in every severance agreement presented to terminated employees over forty years of age. It also provides those employees a mandated time-period of twenty-one days, in which to mull over any offers of severance made.

We have two competing prongs of the same problem. The bias against older workers is high, but so is the standard of proof. In the past decade, several businesses that felt too many workers were playing the “age” card fought back, and in so doing, won a few big decisions in court. In 2009, SCOTUS decided Gross v. FBL which raised the standard of proof from a logical inference of age bias, to placing the burden of proof on the claimant. Now he or she must prove that age was the motivating factor. In an era when mature workers are likely to be receiving the highest salaries at a given company, it is typical to see a swath of layoffs of persons over 40. Those are likely going to be found legal, as long as the motivation is perceived to have been to save money, rather than due to an age bias. Given that age-related motivators can so easily be tangled up with other legitimate reasons for termination by a crafty employer, this scenario allows the problem to continue.

THE TAKEAWAY: What Can You Do?

This is not the first of such studies, and likely will not be the last. All have indicated that there is a fairly massive impediment to workers over sixty getting a “call back,” or invitation to interview, in response to resumes, particularly when they are competing against a younger worker. It must begin to feel as if they are, in essence, nothing more than an “expiration date.”

Discrimination in the “failure to hire” arena is pretty difficult to establish, in large part because there is little, if any, contact with the potential employer. One gets either no response, or a form “no, thank you” which will never be enough to establish unfair employment practices. It is more likely that change, and some small manner of justice, will come through wrongful termination suits, on the grounds that an employee was fired for being seen as “too old to contribute.”

What one needs to prove this kind of discrimination is evidence. Even with that, some cases may not survive, so the claimant has to be certain he or she wishes to pursue it. In order to improve your chances at succeeding on a claim for age discrimination, take the following steps:

DOCUMENT EVERYTHING

✓The most common areas where employers make their true feelings known are comments. If you’re at your desk and a supervisor throws out a comment like you’re a “bag of bones” or “too slow to keep up” or anything that can be interpreted, on its face, as a negative reference to your age, write it down. Ask a co-worker if he or she heard it and jot that down, too.

✓ Keep copies of anything in writing that shows you are being singled out for your age. NOTE: when you take any copies of evidence, take care that no sensitive company information is contained on anything you make copies of, and store any evidence you may collect on your private devices to prevent its removal should the company run across it.

✓ If you are retaliated against for reporting the discrimination, make sure to put those facts in your record as well.

✓ When making this record, review your notes to see if there are any facts you may have missed. Try to recall dates, who made a particular statement and any witnesses to the behavior. Give as much detail as you can provide.

✓ If you attend a company meeting to discuss your complaint, take good notes of the questions asked and the answers you gave, and keep those for your attorney should you eventually need to hire one.

✓ If you are a member of a union, keep your union representative informed of each action taken by your employer, so that they can better advocate on your behalf.

The bottom line is that these cases are difficult to win, and you must be your own best witness. If a claimant can clearly advocate a position for a strong case of age discrimination, it remains against the law, and may be a fight worth undertaking. If you believe you are currently being discriminated against under the law, call an employment attorney now. You can reach the Lazear Mack team at 510-735-6316 or complete a web intake form here.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA

510-735-6316

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