EEOC Hears Testimony on Age Discrimination

Agency Hears Poignant Testimony of Employee Discharged After 31 Years; Panelists Discuss Scope of Age Discrimination

Age Charges Are Trending Up

At a meeting on Wednesday, November 17, 2010, the Equal Employment Opportunity Commission (EEOC) heard testimony that age discrimination is causing older workers to have difficulty maintaining and finding new employment, a problem exacerbated by the economic downturn. The number and percentage of age discrimination charges filed with the EEOC have grown, rising from 16,548 charges — 21.8% of all charges — filed in fiscal year 2006, to 22,778 —24.4% — in fiscal year 2009.

Unemployment Statistics Examined

The EEOC heard testimony from a number of experts on the impact of the economic crisis on older workers, the legal issues surrounding age discrimination today, and best practices to retain older workers. Dr. William Spriggs, Assistant Secretary for Policy, U.S. Department of Labor, testified that the rate of unemployment for people age 55 and over “rose from a pre-recession low of 3.0% (November 2007) to reach 7.3% in August, 2010, making the past 22 months the longest spell of high unemployment workers in this age group have experienced in 60 years.”

Older workers also spend far more time searching for work and are jobless for far longer periods of time compared to workers under 55.

Testimony About Blatant Age Discrimination in Layoffs

Assistant Secretary Spriggs’ testimony reflected the experience of Jessie Williams, who had worked for 31 years in Las Vegas at Republic Services, a multi-million dollar waste disposal company. After more than three decades of stellar employment, he was terminated along with four other foremen over 40. He testified, “I was told that I wasn’t needed any longer . . . [and] that they were going to ‘get rid of the old foremen and get some new blood.’”

Following his discharge, Mr. Williams had to move out of state to find employment. He later became part of the EEOC’s suit against Republic filed on behalf of more than 20 workers discharged due to their age. The case was ultimately settled for nearly $3 million.

Legal Issues Relating to Age Discrimination and Best Practices to Avoid It

Another panel discussed legal issues relating to age discrimination, including the impact of legal precedents, as well as the important role the EEOC can play in addressing the issue.

Finally, representatives of the AARP and the Society for Human Resource Management (SHRM) discussed best practices to retain and attract older workers.

These include increasing part-time and flexible work schedules, offering “phased retirement,” and, in appropriate situations, permitting employees to switch to geographically distant locations during certain seasons — the so-called “snow bird” migration to warmer climates in the wintertime.

Age Discrimination is a “Grave Concern” to the EEOC.

“Hard working men and women should never be harassed at work or forced out of their jobs on account of their age,” said EEOC Chair Jacqueline A. Berrien. “The testimony we heard today also sheds light on some of the unique challenges faced by older job seekers and will be invaluable as the Commission works to strengthen its enforcement of the Age Discrimination in Employment Act.”

“The treatment of older workers is a matter of grave concern for the Commission,” said EEOC Commissioner Stuart J. Ishimaru. “We must be vigilant that employers do not use the current economy as an excuse for discrimination against older workers.”

Materials from the Commission meeting, including biographies and statements of the panelists, with links to information about age discrimination can be found on the EEOC’s website at http://www.eeoc.gov/eeoc/meetings/11-17-10/index.cfm. A transcript of the meeting will be posted there at a later date.

The above is from a press release circulated last week by the EEOC. While it seems to say nothing earth-shaking, it also seems clearly intended to signal that the agency will be taking a harder look at age cases.

The EEOC has limited involvement in actually litigating lawsuits (as opposed to performing its investigative and conciliatory functions). But when it does take on a lawsuit, the EEOC can be a very effective opponent, and is likely to insist on publicizing the outcome. The agency often focuses its attention on certain types of issues and situations. For example, post-9/11 it was very interested in national origin and religion discrimination involving Muslims.

I read this press release as signaling a similar interest in age discrimination in RIFs and hiring as this wearying recession wears on. The statement at the hearing by Mary Anne Sedey, an excellent discrimination lawyer I know who represents individuals in litigation against employers, suggests that age discrimination in hiring may be an EEOC focus in the future.

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