Age discrimination: employment of older workers increases, so does risk of claims

At first glance, these articles seemed to be somewhat contradictory. There is evidence of solid employment opportunities for older workers. One would think this would counter the notion of widespread age discrimination.

But every 40-and-over worker is a potential plaintiff, and the baby boomers are now all in that category. The more protected-age workers working, the more litigation (regardless of how much actual age discrimination is going on).

Start with this AP story (here via GrandForksHerald.com): “Age discrimination now looms for boomers; Assertive generation may find it difficult to prove such allegations” (by Dave Carpenter)

The youngest baby boomers turn 40 this year, leaving an entire generation not only in the throes of middle age but protected by federal law from age discrimination in the workplace.

Despite the big demographic shift, there’s been no explosion of age discrimination charges so far. The U.S. Equal Employment Opportunity Commission received an annual average of 19,500 age claims over the past two years, down slightly from 1992-93, and claims actually declined 4 percent in 2003 from a year earlier.

But some experts think it may be only a matter of time before discrimination claims go up now that workers 40 or older comprise about half the nation’s work force – particularly with the age group now dominated by a generation known for going, and getting, its own way. . .

Thanks partly to medical advances and a growing life span, many boomers anticipate having the option to work longer at their jobs than previous generations did. . .

Worst nightmare

But what if their employers decide otherwise?

The result can be a worker’s worst nightmare: Getting replaced by a younger, cheaper employee. Proving age discrimination, however, has been difficult. . .

Age discrimination is “very difficult to prove right now,” said Michael Lieder, a Washington-based attorney in [a major] case against Allstate [discussed in the article]. “Right now, the burden is on the plaintiff for proving that the employer has some sort of stereotype that prompted them to take the action.”

Possible landmark case

A case that’s to be argued before the U.S. Supreme Court in the fall, involving police officers in Jackson, Miss., could alter the legal landscape dramatically. . . Read more

The Supreme Court case referenced was mentioned in this earlier post here, in which I expressed some skepticism about how dramatic the change would really be, even if the outcome is totally pro-employee.

The Oakland Tribune had this related story: “Finding a job with benefits challenging” (by Eve Mitchell)

While older workers represent the fastest-growing segment of the labor force, they still can face difficulties finding work, as is the case with any age group. Or for that matter, finding a job with benefits . . .

It is difficult to determine how many of the jobs being offered to older workers come without benefits and whether that is a factor in employers hiring them.

And while older workers are seeing robust job growth, the flip side is that the number of discrimination claims have steadily increased over the last five years. In 2003, there were 19,124 age discrimination claims filed with the federal Equal Employment Opportunity Commission, up from 14,141 filed in the dot-com boom year of 1999.

Notice the different intepretation of the same EEOC stats, available here, in this article compared to the last one?

“I think that’s an area of growth in litigation — age discrimination,” said Maggie Grover, a San Francisco attorney who advises employers on workplace issues.

That’s because if there are more older workers both working and looking for work, there is the potential for more lawsuits involving anti-discrimination laws covering hiring, work assignments and termination. . . Read more

Next, here’s something from WISTV (Columbia SC) on improved employment prospects for older workers: “Federal agency reports employment of Americans 55+ on the rise”

Traditionally your chances of finding work decrease as you get older, but experts say that’s changing.

The Bureau of Labor Statistics reports employment of Americans over 55 has jumped by five percent in an otherwise slow job market. Virtually no growth was reported in employment of workers between 20 and 53.

The bureau says they expected the increase as the nation’s 78 million baby boomers age. Healthcare and retail employers are actively seeking older workers. . .

The BLS forecasts employment for the over-55 crowd growing annually at the rate of four percent. That’s four times faster than the labor force as a whole. Read more

Employee Benefit News has this specific example about a retail powerhouse: “Gold in gray: The Home Depot woos older workers” (by Leah Carlson)

As America’s demographics continue to shift, farsighted employers like The Home Depot are changing the way they seek and keep talented workers.

The Atlanta-based retailer . . . plans to open an additional 175 stores, which means hiring approximately 35,000 workers on top of its usual 140,000. . .

To meet its goal, The Home Depot recently unveiled a unique program to recruit, motivate and retain older workers through a partnership with the AARP. It reflects a new strategy in an industry in which finding and retaining workers is not always easy.

“This hiring partnership with AARP is a great opportunity for The Home Depot to attract qualified, knowledgeable and skilled individuals . . . “We believe knowledge, experience and passion never retire.” . .

“This partnership will provide The Home Depot with access to a high-performing, diverse contingent of potential associates that demonstrate a strong work ethic, maturity and leadership. . .”

Hiring these older performers is only half the equation, of course. To retain them, The Home Depot extends a comprehensive set of benefits to full-time and part-time workers, an unusual move in the retail industry. Benefits account for about 25% to 35% of overall compensation for Home Depot employees. . . Read more

So, tired of irresponsible, distracted, young job hoppers? Maybe Home Depot’s got a bright idea.

And if an older employee isn’t cutting it (this may actually in rare cases be due to age-related health conditions), consider a decent severance offer in exchange for a release (consult an employment lawyer to make sure the release will hold up).

And finally, on the topic of older workers and age discrimination, I find this story from the Silicone Valley/San Jose Business Journal interesting: “San Jose sued for age discrimination”

The city of San Jose has been taken to court by the U.S. Equal Employment Opportunity Commission which says a city mechanic was passed over for promotion because someone in city government thought he was too old.

I have a total of 61 years as machinist and mechanic. I believe I am well qualified to do the job,” says James Yu, 72, in a statement provided by the EEOC.

Mr. Yu held down four jobs at the time he filed his complaint with EEOC: In addition to his full-time Monday through Friday day shift for the city, Mr. Yu delivered a daily morning newspaper route, worked at a gas station and then toiled as a bus boy in a restaurant Friday evenings after work and on Saturdays and Sundays.

According to the complaint, the city rejected Mr. Yu’s application for promotion . . . and filled three openings with younger, less experienced, men. Read more

Amazingly active guy. But this raises one of those tough age issues: is it ever justified to prefer a younger employee in the hopes they will be around longer? A tough case to make, since any young guy or gal can up and quit at any time, just as easily as an older employee can retire or die at any time.