Make us your home page

Age discrimination: illegal, immoral and common

Suppose I'm a business that's interviewing people for a job opening. There are two finalists, one 27 years old, the other 52.

They have similar qualifications, albeit the older candidate has more experience. I hire the 27-year-old because that person will be around longer, and I'll get more from the investment I make in training.

That's a perfectly rational business decision.

It's also an illegal one.

Still, in these recent years of layoffs, downsizing and high unemployment, people in their 40s, 50s and 60s have learned that age discrimination is routine, regardless of its legality.

I've heard from dozens of readers who have gone unemployed for years because of their age. Often, more senior workers are the first to go in layoffs, and it's common to see them miss out on promotions. It breaks my heart. And it also angers me, because there's a law meant to prevent this — a law that lacks the teeth to be effective.

The Age Discrimination in Employment Act prohibits employment discrimination against anyone 40 or older. But according to Michael Harper of the Boston University School of Law, the act is nowhere near as effective as Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, gender and national origin.

In an article recently published in the Employee Rights and Employment Policy Journal, Harper wrote: "For no good policy-based reason, ADEA's prohibitions of age discrimination are more difficult and less attractive to enforce."

Furthermore, Congress and the Obama administration have done nothing to beef up the act, despite clear signs that age discrimination is on the rise. Harper cited in his article that 23,000 charges of age discrimination were filed with the Equal Employment Opportunity Commission in fiscal 2010, up by about 7,500 from 1997.

"I'm not criticizing any employer for trying to make money or for being rational," Harper said in an interview. "But we need enforceable regulations, because it's a collective action for our society. The society's interest is not in all cases served by what's rational for the individual employers."

I'd argue that many businesses' interests aren't served well either. By screening job candidates by age, a company wholly overlooks qualifications that might make a person a superior employee. Harper calls it "statistical discrimination," but I'll go ahead and call it short-sighted and dehumanizing.

Eric Matusewitch, former deputy director of the New York City Equal Employment Practices Commission and author of The Manager's Handbook on Employment Discrimination Law, noted that Title VII was amended in 1991 to include "mixed-motive cases." Basically, the plaintiff in a discrimination case only needed to show that his or her race or gender was part of the reason an employment decision was made.

But the Age Discrimination in Employment Act was not similarly amended. In fact, the act was weakened in 2009 by a U.S. Supreme Court ruling that said age discrimination had to be the reason for a contested employment decision.

"That decision barred many older employees from the courthouse door," Matusewitch said.

In his article, Harper calls for a number of reforms to the Age Discrimination in Employment Act that would make it at least as strong a deterrent to discrimination as Title VII. Those include allowing victims of age discrimination to sue for compensatory and punitive damages and making it easier to have age discrimination suits certified as class actions.

But would changes to this law make a difference, particularly when companies can discriminate based on age with relative stealth?

Matusewitch thinks so.

"Clearly employers would be put on notice that they have to be much more careful about their hiring decisions regarding older workers," he said.

Unfortunately, given that we have a Republican-led U.S. House of Representatives that bristles at the mere thought of additional business regulations, Matusewitch and Harper say swift changes to the age discrimination law are unlikely.

That's a shame. There is no reason age discrimination should be taken less seriously than any other form of bias. It's wrong morally, and it's stupid economically.

Companies may be cutting their bottom lines by pushing out older workers in favor of younger ones, but as more older workers remain unemployed, the cost to the country at large goes up.

Age discrimination: illegal, immoral and common 04/13/13 [Last modified: Tuesday, April 9, 2013 6:30pm]
Photo reprints | Article reprints

Copyright: For copyright information, please check with the distributor of this item, Tribune News Service.

Join the discussion: Click to view comments, add yours

  1. Jordan Park to get $20 million makeover and new senior housing

    Real Estate


    Times Staff Writer

    ST. PETERSBURG —The St. Petersburg Housing Authority, which bought back the troubled Jordan Park public housing complex this year, plans to spend about $20 million to improve the 237-unit property and construct a new three-story building for …

    Jordan Park, the historic public housing complex, is back in the hands of the St. Petersburg Housing Authority. The agency is working to improve the 237-unit complex. But the latest plan to build a new three-story building for seniors will mean 31 families have to find new homes. [LARA CERRI   |   Tampa Bay Times]
  2. Coming soon at two Tampa Bay area hospitals: a cancer treatment that could replace chemo


    A new cancer treatment that could eventually replace chemotherapy and bone marrow transplants — along with their debilitating side effects — soon will be offered at two of Tampa Bay's top-tier hospitals.

    Dr. Frederick Locke at Moffitt Cancer Center in Tampa is a principal investigator for an experimental therapy that retrains white blood cells in the body's immune system to fight cancer cells. The U.S. Food and Drug Administration approved these so-called "CAR-T" treatments for adults this month. In trials, 82 percent of cases responded well to the treatment, and 44 percent are still in remission at least eight months later, Locke said. [CHRIS URSO   |   Times]
  3. Regulator blasts Wells Fargo for deceptive auto insurance program


    Wells Fargo engaged in unfair and deceptive practices, failed to properly manage risks and hasn't set aside enough money to pay back the customers it harmed, according to a confidential report by federal regulators.

    Wells Fargo engaged in unfair and deceptive practices, failed to properly manage risks and hasn't set aside enough money to pay back the customers it harmed, according to a confidential report by federal regulators.
[Photo by Spencer Platt/Getty Images, 2017]
  4. McDonald's soft serve in Florida is made with handshakes and happy cows


    Floridians licked nine million McDonald's vanilla cones last year.

    Calves play with a rubber toy at the Milking R Dairy in Okeechobee, FL. Owners Sutton Rucks, Jr., and his wife Kris Rucks sell their milk to SouthEast Dairies cooperative, Edward Coryn of Dairy Mix in St. Petersburg buys it, transforms it into soft-serve ice cream base, and sells it to all the McDonald's. SCOTT KEELER   |   Times

  5. Hurricane Irma thrashed Tampa Bay homes sales in September

    Real Estate

    Hurricane Irma not only downed thousands of trees throughout the Tampa Bay area: It also sent home sales plunging in September.

    This home on Tampa's Davis Islands home sold in September for $5.2 million, making it the priciest sale of the month in the Tampa Bay area.
[Courtesy of Judson Brady Photography]