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Is Age Really Just a Number?  Combating Ageism in the Workplace

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Mark Twain once said, “Age is an issue of mind over matter.  If you don’t mind, it doesn’t matter.” Chances are Mr. Twain didn’t have to deal with ageism in the workplace.  If he did, he would have known that yes, unfortunately, sometimes it does matter…a lot. 

“We have a youth culture in this country where younger is better than older,” said Tom Osbourne, senior attorney with the AARP Foundation, in the Monster.com article, “Avoid Age Bias in the Workplace.” In the article, Osbourne offers advice to the older worker. “It doesn’t matter how good you are at your job or how much experience you’ve acquired over the years.  If you’re rounding the corner towards 50, you’d be smart to start looking for signs of age bias.”

Overt signs of age bias include being passed over for promotions and training programs, being asked to move into smaller or less appealing offices, or being frequently engaged in discussions with superiors regarding retirement. 

However, ageism can be much more subtle.  If your work practices ultimately have a negative effect on employees over the age of 40, you are in danger of being sued.  The U.S. Supreme Court ruled on March 30, 2005 that the disparate impact theory of liability is available to employees suing under the 1967 Age Discrimination in Employment Act (ADEA).  According to the SHRM article, “Court: Workers can Sue for Unintentional Age Bias,” “The disparate impact theory allows plaintiffs to challenge an employer’s neutral practices that have a disproportionately negative impact on persons over the age of 40, so workers will be able to sure in some cases over employer actions that result in unintentional discrimination.”  To clarify, the new ruling indicates that cases no longer need to prove that the organization intended harm, only that the policy resulted in harm for older workers.  This ruling affects about 75 million workers over 40, which is about half of our nation's labor force, according to the Bureau of Labor Statistics.

As indicated in the SHRM article, Smith vs. the City of Jackson, Mississippi prompted the ruling.  The City of Jackson revised their pay plan in 1999, giving police officers and dispatchers with less than five years of service proportionately greater raises than those who had been with the department for a longer amount of time.  The city’s goal in instituting the pay program was to align starting salaries with the regional average while at the same time attracting new recruits.  Believing this to be unfair, a group of officers over the age of 40, all with more than five years experience on the job, sued the city alleging intentional age discrimination.  The case went all the way to the Supreme Court.  While the plaintiffs did not win their case, the result of their Supreme Court appeal incited the March 30 ruling.

Before the ruling, employees seeking damages would have had to prove that the employer crafted a policy with the intent to screen out or exclude older workers.  “That proof of intent is very hard to come by even if it was there,” explained Laurie McCann, another AARP senior attorney, in the New York Daily News article, “Mixed Message on Age Bias.” “You’d be very lucky if in discovery you found the memo or something that said that was their intent.”

There is no shortage of age discrimination complaints in America.  In fact, age bias in the workplace is the fastest category of complaints received by the Equal Employment Opportunities Commission (EEOC).  In 2004, the EEOC received 17,837 charges of age discrimination. Of these, the EEOC resolved 15,792 age discrimination charges and recovered $60.0 million in monetary benefits for charging parties and other aggrieved individuals, not including monetary benefits obtained through litigation.  

In the Los Angeles Times article, “High Court Expands Right to Sue for Age Bias -
Intentional Discrimination by Employers not Necessary for Older Workers to Prevail,” Supreme Court Justice John Paul Stevens said employers could successfully defend themselves against such claims if they could show they had good business reason for adopting the policy.  "Age, unlike race ... (sometimes) has relevance to an individual's capacity to engage in certain types of employment," said Justice Stevens, who recently turned 85, and was part of the majority opinion for the March 30 ruling.

In order to avoid age discrimination lawsuits, employers must continue to be aware of any adverse effects that their policies may have on older employees.  “Based on the court’s rationale, I think employers will be well advised to fully document the business reasons for actions that will have an impact on a broad group of employees,” said Maria Greco Danaher, of Dickie, McCarney & Chilcote, in the previously mentioned SHRM article. 

Employers who don’t consider the possible discriminatory effects of their policies risk not only possible lawsuits, but also the loss of experienced employees with essential business knowledge and experience.  These seasoned individuals are vital to the success of an organization.  

Mark Twain also once said, “Wrinkles should merely indicate where smiles have been.” Employers must strive to keep older employees smiling by being sensitive to age discrimination and by promoting fair business practices in the workplace.