Older Workers Fighting on Many Fronts
Unemployment has remained at record levels for older workers, who also face the longest average duration of joblessness of all age groups. Half of the unemployed age 55 and older have been out of work for six months or more.
While the unemployment percentage rate of older workers is significantly lower than for other age groups, the longer duration of joblessness indicates how much tougher it is for older workers to find new jobs. The difficulty of gaining new employment for older workers comes as their need for jobs and income has increased.
With teenagers and other younger workers facing unemployment rates of 20 percent or higher, the need for families to supplement incomes through the work of older family members has become even more pronounced. When spouses or other family members are out of work, older workers have sought to re-enter the workforce, find new work if they’ve been laid off, or try to maintain their jobs longer.
While the labor force participation rates for those 16-to-24 and 25-to-54 years old have remained steady or declined since 1991, the participation rate for those 55 and older has risen by 10 percent, and has continued to rise even during the Great Recession.
As of February 2010, more than 2.2 million older workers were officially unemployed — once again, nearly half for six months or longer.
Those older workers trying to keep their jobs face employers who appear more willing to continue eliminating those jobs — often higher-paid due to longer, loyal employment tenures — as part of the relentless rounds of cost-cutting.
And, thanks to the 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc. employers are feeling emboldened to terminate, demote or replace older workers with less concern for potential age discrimination claims. The Washington DC Law Update summarized the
impact of the decision last summer:
In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.
The Connecticut Employment Law Blog wrote:
I like the Manpower blog’s summary even better:
Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.
Last week Congressional committee hearings were held in both the House and Senate to determine if a new law is needed to overturn the Gross v FBL decision and strengthen federal legal protections for older workers. Bills have already been introduced by House Education and Labor Committee Chairman Rep. George Miller (D-CA), Senate HELP Committee Chairman Sen. Tom Harkin (D-IA) and Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT).
At the Senate Committee hearing Sen. Harkin explained the impact of the Supreme Court’s decision and introduced Iowan Jack Gross, the plaintiff in the case, saying:
We have convened this hearing to examine the issue of employment discrimination against older workers and the need, in the face of a very misguided and harmful Supreme Court decision, to enact legislation to ensure that older workers are treated with the fairness they deserve.
“We will hear today from my fellow Iowan, Jack Gross. Jack devoted the prime of his life, over a quarter century of loyal service, to one company. How did the company reward him for his dedication and hard work? It brazenly demoted him and other employees over the age of 50, and gave his job to a younger employee who was significantly less qualified.
“Over 40 years ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act, or ADEA. Very simply, that act made it unlawful to discriminate on the basis of age. When Jack sought to enforce his rights under this law, a jury of fellow Iowans ruled in his favor and concluded that age had been a motivating factor in his demotion.
“Yet, when his case was appealed to the Supreme Court, a slim, activist majority of five justices overturned the jury verdict and decided to rewrite the law.
“For decades, the law was clear: If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. The Court, however, addressing a question it did not grant cert on, tore up this decades-old standard and imposed a new standard that the Supreme Court itself had rejected in a prior case and Congress had rejected when we enacted the Civil Rights Act of 1991.
“As a result of the Supreme Court’s ruling, it is now prohibitively more difficult to prove age discrimination. A victim of age discrimination now bears the full burden of proving that age was not only a motivating factor but the decisive factor. This extremely high burden radically undermines older workers’ ability to hold employers accountable. Too many employers are now empowered to discriminate on the basis of age as long as they purport to have some other reason for their decision.
Read a summary of the Protecting Older Workers Against Discrimination Act. You can view the Senate HELP Committee hearing and read the testimony here. Information on the House subcommittee hearing last week is here.
With all workers of all ages, employed and unemployed, under siege in this deepest of all recessions since the 1930s, it is that much more vital that we all stand together. When younger workers can’t find jobs, we all suffer. When older workers are targets of discrimination, we’re all targets — and the nation’s soul is scarred.
Tags: unemployment
Age discrimination in job advertising is so blatant these days and no one in government oversight agencies seems to care.
Daily, I see job ads advertising for workers using code phrases like:
- need a certain GPA (only younger workers would have a GPA that mattered),
- We are a YOUNG group of people (you old guys wouldn’t fit in, so don’t waste your time applying)
- Recent college graduates only
- “Experience required: 1 year (min) to 5 years (max)”
- “AT THIS TIME WE ARE ONLY RECRUITING FRESH GREADUATES [sic]OUT OF SCHOOL WITH BA OR BS DEGREE.” (company doesn’t know how to use a spell checker either)
- “RECENT COLLAGE [sic] GRADUATES ARE WELCOME. (another spell challenged company)
- Inside sales for fun young internet startup:
Requirements:
In college, or recent college graduate
Passion for the startup culture
Web-savvy and technologically sophisticated
Fearless
- “If you are a sales executive in the early stages of your career”
etc., etc. I could go on but I think you get the point. The EEOC should hire me. I’d ream these guys a new a##hole.
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Placing the burden of proof on the employer in age discrimination lawsuits is still not enough to achieve the hiring of older workers. An employer can advertise a job with 10 qualifications, turn away an older worker for lacking one of them and hire a younger worker with 50%, and it’s all legal. An employer can state that the personality of the younger candidate was better, and that is perfectly legal. Most working people cannot afford an attorney in a discrimination case. The companies have lawyers on retainer. A discrimination case is unlikely to succeed unless there is a class of 50 people who will testify to having had a similar experience and who heppen to speak to the same law firm or get together in a group and go to a law firm.
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There are two alternatives in getting older workers back to work: either regulate the hiring system or create New Deal jobs that people can sign up for without having to be the employer’s Chosen One. The entire hiring system has been designed by employers to avoid any regulations. Starting with the job ad, long laundry lists enable the employer to turn down older workers, women, minoroties or the disabled on completely legal grounds. There are people who oppose affirmative action because they say it is reverse discrimination, but in actuality affirmative action is necessary to correct for the fact that persons in those protective categories are not being hired without it. The next step is the resume. This document provides the employer with ways to pick apart an applicants work history and look for things to criticize: gaps in employment, job changes, etc., are all reasons used to put candidates on the defensive and to turn decent workers into “bad candidates.” The individual submits the resume online and it is scanned by an applicant tracking system. Former managers, anyone who didn’t like a candidate or feels jealous of a candidate in a previous interview, can click on a box and blacklist the candidate. Candidates who used an outplacement firm that sent out a large number of resumes may be blacklisted for “spamming” without even knowing it. People who apply for more than 15 jobs at the same company lifetime can be blacklisted. We also need to look at vendor management systems. The client clicks a box to allow a recruiter to submit candidates. The success rate of the recruiter in placing candidates is tracked. Recruiters who have presented numerous clients who have not been hired have a low percentage. The client can see this and not select or deselect (with a click) that recruiter. Therefore the recruiter is disincentivized from presenting older candidates because it could lower his percentage. Or if a client doesn’t like a candidate presented by the recruiter, the client can click and drop the recruiter. Vendor management systems also mean that the client can reduce wages and allow foreign recruiters to compete by submitting candidates at lower rates. This has caused some American recruiters to drop some large client companies. Continued in the next comment.
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The next stop, for jobs not requiring a college degree, is a psychological test. Often it is called a “survey.” The applicant is not provided with the results of the test. If the applicant does not score as the right “type” for the job will be, in effect, blackballed. For example, someone who scores as a social services type or an artist will not be placed in an accounting firm or an HR office. Next comes the interview, with a barrage of questions designed to put candidates on the defensive. Candidates are old never to say anything negative about a previous employer, but are asked pointed questions about the reasons they left their jobs. Some coaches tell candidates to say negative things about themselves, i.e. “confess” guit for job mistakes they have never committed. Interview questions may cover arcane subjects never used on the job. The purpose is to intimidate the candidate and to turn a decent person and worker into a “bad candidate.” A candidate may be interviewed by 7 or 8 people, any of whom can blackball the interviewee. Older candidates and other affirmative ation categories of candidates can fail the interview for not “fitting in.” Next comes the background check. Older workers are more liekly to have had a credit problem in the economy of the last ten years, or to have a financial burden that caused bad credit – a medical bill for oneself or for a relative, a job loss, etc. This is why the people in management come from the class of wealthy families – they have never needed credit. In the background check the applicant is required to let the company talk to anyone who ever knew the applicant. Again this harms older workers and it is especially damaging to women, who may have men resenting them because of rejection in the dating domain. And it gives anyone’s competitors a forum to knock them down. This results in even more blacklisting. In summary the hring process systematically creates a class of people who will be excluded from employment, and this has a severe impact on older workers, who have probably fallen into one of the snares at some time in their lives.
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