Age discrimination will affect everyone in the workforce at some point in their careers regardless of socio-economic standing, religion, color, disability, gender identification, or sexual orientation.
Given ageism's impact and prevalence, the International Bar Association (IBA) assembled a panel of international experts – including Outten & Golden's Wendi Lazar – to address the topic at its annual meeting in Miami on November 1, 2022.
The elite speakers for the program, "Time to Rage* - The Power of Oldness and Why We Should Care About Age Discrimination," also included:
- Frances Anderson – Victorian Government Solicitor's Office (Melbourne, Australia)
- Daniel Kohrman – Senior Attorney, AARP Foundation, (Washington, D.C.)
- Ronnie Neville – Partner, Mason Hayes & Curran (Dublin, Ireland)
- Franck Raimbault – Corporate Legal Director, Air France, (Paris)
- Roselyn Sands – EY Law (Paris)
The following reflects Wendi's comments during the discussion.
Employers Face a Choice
With a recession looming and COVID continuing to prevent "normalcy" in the labor force, employers are experiencing a stark shortage of workers worldwide. The high demand and short supply are forcing companies to rethink the value of older and often more experienced workers.
Virtually every employer now faces a critical choice: Should we engage older contributors and the ideas, talents, and tenacity they bring to our factories, boardrooms, and other multi-generational workplaces, or should we pay the price of forcing them out, and harming them, their families, and the economy as a result?
Age Discrimination in the U.S.
In 2010, the U.S. Supreme Court made it much harder for older Americans to bring legal action against their employers, despite evidence of clearly disparate treatment and severe discrimination. In Gross v. FBL Financial Services, Inc., the Court held:
A plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.
The impact of the decision resounds today.
Working women still encounter the double bias of age and gender discrimination, but Gross has rendered mixed-motive cases non-viable when it comes to age discrimination. In such instances of intersectionality, it must be a "but for" analysis to even state a claim.
As Wendi told the IBA audience, she advises women clients over 50 who lose their jobs that it will take at least 12 months for them to be re-employed and usually longer. Even the fortunate ones who soon find opportunities often leave or are terminated within a year or two because of the increase in uni-generational companies and prevailing anti-age work cultures. Getting the same or better compensation is also challenging for this age group.
As the marketplace supports and trumpets diversity, equity, and inclusion initiatives, isn't it time to revalue age diversity and a multi-generational workforce too? Are words like successorship and retirement still viable concepts and if so, how are they applied to the future of work?