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Older and Out: Age Discrimination in the Workplace

Amy Engeler

We've witnessed the rise of civil rights, women's rights, animal rights. Now, with a recession looming, we're going to get nudged out of our jobs because of our age? We don't think so. MORE reports.

Women and Age Discrimination

At 52, you're one of the oldest employees in the office and among the best paid. Your evaluations have been glowing; in fact, you just won a productivity award. Then one day you meet the new division head, who appears to be some 20 years your junior. He asks how long you've worked at the firm and if there's anything you still hope to accomplish there. And are you getting enough time to visit with your grandchildren?

Your bias detector -- the one you honed back when bosses still dared to call you "honey" -- is twitching. And it should, because, after decades of climbing the ladder and playing the game and perhaps paying a personal price, it turns out that seniority and a big salary can endanger your job security. Especially if you're a woman.

Age discrimination used to be more blatant than it is now. Airline "stewardesses" were forced to retire at 32. And help-wanted ads blithely sought "applicants between the ages of 25 and 35." The Age Discrimination in Employment Act of 1967 (ADEA), which protects the rights of workers 40 and older, helped to end the most barefaced bias. But we live in a culture where beauty is youth and change trumps experience (a culture, some would argue, that the upper tier of our own demographic helped to foster decades earlier with slogans like "Don't trust anyone over 30"). As the massive baby boomer generation grows older, age-based complaints to the federal government's Equal Employment Opportunity Commission have increased; they're up nearly 21 percent from 10 years ago and now comprise nearly a quarter of the commission's workload. "People are living longer and wanting to work longer," says Elizabeth Grossman, an attorney in the EEOC's busy New York office, "and quite a few employers resist keeping these employees on the payroll past a certain point." Or hiring them in the first place: Job candidates ages 35 to 45 were 40 percent more likely to be called for an interview than candidates with similar backgrounds -- and more years of experience -- who were 50-plus, according to a study published this year by Joanna Lahey, an assistant professor of economics at the Bush School at Texas A&M who specializes in age discrimination. For each decade of age, job seekers needed to apply for four and a half more positions just to get an interview.

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Now older women are filing nearly as many EEOC complaints as older men. Some allege both age and sex discrimination. In these "age-plus" (or "gender-plus") cases, sex discrimination -- typically in such male-dominated fields as finance and law -- worsens with age.

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"These women who broke the mold and got the positions now seem to be more easily disposable than the men in the same age group," says Wendi Lazar, a partner in the New York employment law firm Outten & Golden. "I think the reality is that most of the women who achieve success are excluded from the boys' clubs that continue to exist at the highest levels. As a result, when there are layoffs, many of these women -- particularly older women -- are the first to go. They have no rabbis and little political protection."

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Most of the laws (including the ADEA) in the EEOC's bailiwick require a plaintiff to file a charge with the agency before pursuing a private lawsuit in federal court. If the EEOC is unable to conclude that there is evidence of discrimination, it closes the case and gives you 90 days in which to file a private lawsuit on your own behalf. If it finds probable cause that discrimination has occurred, it will send its findings to both you and the company involved and attempt to find an out-of-court remedy. If that fails, the EEOC then grants you a "right to sue" notice. (Again, the private lawsuit must be filed within 90 days.)

Sometimes the agency itself will take on a case, filing a suit on a complainant's behalf, but that's rare.

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Many cities, states, and counties have their own antidiscrimination laws and their own agencies, such as the CCRD, for enforcing them; "work-sharing" agreements between the EEOC and state civil rights offices prevent duplication of efforts.

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Lilly Ledbetter and the Supreme Court

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In June 2007, the Supreme Court issued a landmark decision in a gender discrimination case that pulled the rug out from under plaintiffs alleging all kinds of job discrimination. Lilly Ledbetter, 70, had sued the Goodyear Tire and Rubber Company under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin; she was awarded $360,000 as compensation for receiving at least 15 percent less pay than her male counterparts throughout her career as a plant supervisor in Gadsden, Alabama. Ledbetter had sensed her paychecks were smaller, she said, but had no proof until she received an anonymous letter, just before she retired, listing her salary and that of three male employees with the same job description. Goodyear appealed the decision, and the case made its way to the Supreme Court, which ruled that Ledbetter was not entitled to the money. Writing for the majority, Justice Samuel Alito said that Ledbetter's claim was "untimely" because an EEOC claim must be filed no more than 180 days after a discriminatory act has occurred.

To civil rights advocates and others, the ruling didn't make sense. Not only had Ledbetter been in the dark about the pay difference for most of her career, but the disparity also continues to this day, because she draws smaller pension checks than her male counterparts. In a vigorous dissent, Justice Ruth Bader Ginsburg wrote that "the ball is in Congress's court," urging lawmakers "to correct this parsimonious reading of Title VII."

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Congress Steps In

"When women come to our office, they know they have been treated unfairly," attorney Lazar says. "But many of them can't conceive, after the sacrifices they have made, that they will be cast aside -- not promoted, or worse: terminated and given very little in terms of severance for their lifetime of dedication and loyalty."

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For a generation of women who witnessed historic strides in abolishing discrimination based on race, religion, disability, sexual orientation and, yes, gender, it can be almost impossible to fathom that they might now be getting pushed out simply because they have reached a certain age. But recognizing an inequity is always the first step in resolving it, and by filing an increased number of complaints with the EEOC, women may have set the stage for the judiciary to take a second look at "age-plus" cases.

In a somewhat surprising change of course, the Supreme Court handed down several rulings this year favoring workers over employers. Perhaps the most important was a seven-to-one decision on June 19 that said, in effect, companies must prove that workforce reductions are based on "reasonable factors other than age." The case involved layoffs at the Knolls Atomic Power Laboratory, a federal research center in upstate New York where 31 people were let go, 30 of whom were over 40. Although Justice David Souter, in writing for the majority, acknowledged that the decision would make it more difficult for employers to defend themselves, he said the court had to follow the law -- ADEA -- "the way Congress wrote it."

The Lilly Ledbetter decision, with its ramifications for workplace discrimination of all types, touched off a firestorm. Congress did, as Ginsburg urged, "take up the matter," in a bill sponsored by Representative George Miller, a Democrat from California. The Lilly Ledbetter Fair Pay Act states that each discriminatory paycheck is a separate act of bias, triggering a new 180-day window for filing. The bill passed the House in July 2007 but fell four votes short in the Senate in late April 2008. Both Hillary Clinton and Barack Obama returned to Washington from the campaign trail to vote in the bill's favor; John McCain did not but told reporters that if he had, he would have voted against the legislation because it "opens us up for lawsuits, for all kinds of problems and difficulties."

As MORE went to press, the bill was expected to be reintroduced in the Senate; if it hasn't come up for a vote before the new Congress in January, it will have to be reintroduced in the House as well. Meanwhile, the barbs against older Americans keep coming -- many now aimed squarely at McCain himself, who, at 72, may end up being the oldest person ever to be inaugurated as president. (A new book, 72 Things Younger than John McCain, lists six dozen familiar things -- duct tape, the Jefferson Memorial, statehood for Alaska, area codes -- that came into existence after his birth.)

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