Age Discrimination

Age DiscriminationAlong with race and gender, people commonly use age to categorize and form stereotypes about others. Ageism consists of a negative bias or stereotypical attitudes toward aging and the aged. It is maintained by persistent, mostly negative stereotypes and myths concerning older individuals. Age discrimination itself is an action; however, it is a consequence of and is moti­vated by ageist attitudes, beliefs, and prejudices.

Age discrimination in the workplace occurs when an employer differentially treats employees on the basis of their age rather than on their individual merit. It affects various workplace functions, including hiring, training, promoting, and termination of employees. Underlying age discrimination at work are ageist attitudes and stereotypes about the abilities of older workers. These ageist stereotypes hold that age is a primary factor in determining individuals’ abilities and that older workers are less mentally and physically able to perform their jobs than are younger workers. Based on these stereotypes, older workers are assumed to be less productive, less creative, less innovative, less willing or unable to learn, and more prone to sickness and accidents than are younger workers.

Stereotypes encourage age discrimination because they mask individuals’ capabilities and therefore limit workers’ opportunities and potential. Attitudes about appropriate social roles for older people and the assumption that all older workers would prefer and are able to afford to stop working also encourage age discrimination. Deeming some jobs unsuitable to workers over a certain age may disqualify entire groups of workers considered to be too old. Beliefs about the costs of employing older workers also further workplace discrimination. After longer employment tenures, older workers generally have higher earnings and are also assumed to have more health problems. Since employers are always searching for ways to reduce costs, older workers may be considered less desirable.

Age is only one criterion on which employers may discriminate among workers. Indeed, age discrimination can be intertwined with other types of discrimination, including race and gender. Some older workers may experience “double jeopardy” in the workplace due to their race, gender, or disability.

Nonetheless, age discrimination in employment is different from other types of discrimination because it is the one type of discrimination that all workers have the potential to experience during their lifetimes. Unlike other groups that are legally protected from discrimination, such as women, racial and ethnic minorities, and disabled workers, if they live out the normal life span, all employees will eventually be part of the legally protected group of workers over the age of 40. In addition, age discrimination is a unique form of bias, since it is likely that younger workers who benefit from ageist employment practices in their youth will be negatively impacted by the same policies as they grow older.

Shifting Trends for Older Workers

Labor force participation rates of older workers have been on the rise since the mid-1980s. In 2002, workers over age 55 comprised approximately 14 percent of the labor force. Among people 55 and older, 35.7 percent were employed in 2003, and that number is expected to increase to 39.3 percent in 2014. Although men have higher labor force participation rates than women overall, rates for both women and men workers in all age categories over 55 are projected to increase by 2014 as well.

A central focus of discussions about age discrimination in employment is the impending impact of the “baby boom generation” (individuals born between 1946 and 1964). This large group of workers is expected to radically alter individual and societal expectations about aging and work. Future labor force participation and retirement patterns among baby boomers are important factors in determining the future age composition of the U.S. workforce. Because they constitute such a large and visible cohort, employment patterns of baby boomers will impact norms and assumptions about older workers. Furthermore, baby boomers are expected to retire at older ages (in part due to changes in the Social Security retirement age from 65 to 67) than previous cohorts of workers, and these trends are likely to impact the age structure of the labor force.

Researchers predict that due to slow growth and the aging of the workforce, older workers will become increasingly attractive to employers needing to fill jobs. In theory, this means that once the baby boomers retire, the number of open jobs will increase dramatically without enough younger workers to fill them. Thus, some researchers predict that the job market may become more accessible to older workers seeking employment. Others are not as optimistic about the shifting demand for older workers and caution that they will still experience disadvantages in the labor market.

Why do older people continue to work past the typical age of retirement? A primary reason for many is economic need. Many individuals must work past the typical retirement age to be better financially prepared to live out their later years. Also, many older workers continue working because they enjoy their jobs, take pleasure in work relationships, and derive part of their self-identities from work. Furthermore, older workers also have the desire to remain independent, active, and involved in the world and to continue contributing to society.

Dispelling Stereotypes about Older Workers

Older workers are an extremely heterogeneous group, which makes it difficult to formulate broad generalizations about them as a whole. Nonetheless, research on psychological and physical functioning and aging demonstrate that ageist stereotypes that inspire age discrimination are without merit. Indeed, most older workers are physically and intellectually able to perform their work roles far beyond the typical age of retirement and well into later years in life. Substantial empirical research finds no support for the assumption that age changes necessarily precipitate unavoidable declines in work performance. Nor does age lead to an increase in workplace accidents or absenteeism. In fact, according to the American Association of Retired Persons (AARP), many employers report that older workers are more loyal, have lower rates of absenteeism, and are generally more reliable than younger workers.

Studies also show that older workers are, in fact, willing and capable of changing with the times and learning new work methods and technologies. Some researchers argue that the type of work is an important determinant of older workers’ motivation and adaptability. They suggest that intellectually challenging and stimulating jobs have a positive impact on all workers’ morale, commitment, and ambitions on the job.

Although some older workers have higher earnings than younger workers due to longer job tenure, in terms of health care costs to employers, older workers are not more expensive than younger workers. Rather, employers report that younger workers with dependents are actually more expensive to employ. While the costs of some health benefits increase with age, the AARP reports that older workers use fewer medical benefits than do younger workers. Furthermore, since disability is one of the primary reasons for retirement, those who remain employed beyond the typical retirement age are likely to be a self-selected group of healthier, older workers. Presumably, these workers require less, rather than more, medical care.

Protection against Age Discrimination

Age discrimination has consequences for individuals, employers, and society at large. It can hurt individual workers and their retirement security, and it is costly to employers charged with discrimination. Finally, ageist attitudes potentially exclude a valuable pool of workers, which will become even more important as the younger workforce gets smaller with the aging of the baby boomers.

The Age Discrimination in Employment Act (ADEA) was first enacted in 1967 and was later expanded in 1978. Growing from the sentiments and momentum of the civil rights movement, the purpose of the ADEA was to challenge ageist assumptions about older workers’ abilities and prohibit employers from discriminating against workers on the basis of age alone. As part of the 1964 act, Congress directed the U.S. Secretary of Labor to investigate the prevalence of age discrimination in the workplace. The report cited rampant age discrimination, finding that 50 percent of all job openings in the public market in 1965 were closed to applicants over age 65 and that 25 percent made the age 45 the cutoff. The Equal Employment Opportunity Commission (EEOC) is the government agency charged with enforcing the ADEA through investigating and litigating charges of age discrimination against employers. According to the EEOC, 12.8 percent of all discrimination charges filed in 2002 were based on age.

The ADEA prohibits discrimination against a person over 40 on the basis of age in every aspect of the employment relationship, including job advertisements, recruitment, interviewing, hiring, firing, compensation, assignments, classifications of employees, transfers, promotions, layoffs or recalls, testing, training and apprenticeship programs, medical examinations, fringe benefits, or other terms of employment. The ADEA also prohibits retaliation against an individual for asserting his or her right to file an age discrimination charge against an employer, participating in an investigation of the employer, or otherwise opposing discriminatory practices.

In addition, the ADEA prohibits discriminating between two individuals solely on the basis of age, even if both individuals are 40 or older. For example, in choosing between two potential employees for the same position, it is illegal to choose a younger worker instead of an older worker solely on the basis of their ages. Also, if choosing between two potential employees both over 40, the employer may not turn down either on the basis of age, but must use some other criteria to decide. The ADEA applies to private employers with 20 or more employees employed for 20 consecutive weeks, as well as federal, state, and local governments. Labor organizations with 20 or more members and employment agencies must also comply with the act.

There remain a number of exceptions to the ADEA. The first one is the bona fide occupational qualification (BFOQ), which has been used to justify excluding older workers from certain public safety jobs. The BFOQ specifies that employers must prove that an age limit is necessary for performance of the job. Other exceptions to the ADEA include the Equal Benefit Rule, specifying that individuals cannot be denied the opportunity to participate in an employer benefit plan. Furthermore, age-based reductions in benefits are illegal unless the costs increase with age and the cost to the employer is the same for younger and older workers. Bona fide seniority systems are permissible as long as they do not attempt to subvert the purposes of the ADEA and the retirement decision is not coerced and voluntary. When employees receive severance benefits or accept early-retirement incentives, some employers use waivers and releases of ADEA rights and claims. For these to be valid, employees must agree to them both knowingly and voluntarily. The Older Workers Benefit Protection Act of 1990 amended the ADEA and sets strict guidelines for establishing the validity of these waivers.

Institutional and Individual Discrimination: Effectiveness of the ADEA

The ADEA was intended to eliminate age discrimination at both individual and institutional levels. Many analysts argue that it has been more effective in reducing the latter than the former type of discrimination. At the institutional level, mandatory retirement laws are the most evident historical example of age discrimination. Historically and currently, social norms and the system of retirement either explicitly or implicitly limit the number of people holding or looking for jobs. Although mandatory retirement is illegal, several weaknesses in the ADEA allow employers to discriminate against older workers regarding retirement. Some economists argue that although mandatory retirement was outlawed, it has essentially been replaced by lucrative financial incentives for retirement that are concurrent with the time mandatory retirement would occur. Early voluntary retirement programs, even if they are offered to reduce a firm’s costs, do not violate the ADEA. Others have shown that the benefit calculation rules of Social Security as well as most defined-benefit employer pensions encourage retirement and discourage working beyond the typical retirement age because they reduce the value of workers’ retirement income for those who stay on the job after age 65.

Outlawing mandatory retirement programs based on age has been effective at the institutional level. However, evidence of age discrimination in employment persists, including the length of time it takes older workers to become reemployed, the accompanying wage loss that many older workers experience upon reemployment, and the size of the compensations granted to victims of age discrimination. Some research shows that during economic downturns and episodes of downsizing, employers may subvert the ADEA by terminating workers across the age spectrum but rehiring only younger workers.

With economic changes and the decline in lifetime employment in recent decades, older workers are no longer as secure in their jobs as they once were. Although older workers are still less likely to lose their jobs than are younger workers, the consequences of unemployment for older workers can be severe. Once unemployed, older workers have greater difficulty finding jobs after spells of unemployment. In fact, being laid off and the ensuing job hunt can be particularly discouraging for older workers and can encourage them to retire even though they may prefer not to do so.

At the individual level, age discrimination is difficult to prove. Employers charged with hiring and firing make individual decisions about the capacities of older versus younger workers. These types of decisions may be influenced by blatant and overtly ageist attitudes or subtle and covert attitudes about aging. In legal terms, there are two discourses used to claim individual age discrimination: disparate treatment and disparate impact.

The majority of age discrimination cases use the disparate-treatment theory. Under this argument, the plaintiff must prove that the discrimination was intentional, providing evidence to prove that there was motivation to discriminate. Motivation is difficult to establish, and courts often rely on a three-stage model of proof. The plaintiff must verify that he or she is part of the protected group, suffered adverse reactions due to the employer’s behavior or policies, was successfully performing the work to the legitimate expectations of the employer prior to the discriminatory acts, and was subsequently replaced. The employer must then present nondiscriminatory reasons justifying the action taken against the employee. Finally, the plaintiff must establish that the reasons given by the employer were actually a pretext for discrimination.

Under a disparate-impact claim of age discrimination, the plaintiff must show that seemingly age-neutral employment practices or policies had a disproportionately negative effect on older workers. To refute the claim, the employer must demonstrate that the organization required the action or policy for “business reasons” or show that the negative effect was due to non-age-related factors.

In summary, although blatant age discrimination is no longer legal, age biases continue to operate in the workplace. Age discrimination remains an important concern for all workers. The aging of the baby boomers and their changing work and retirement patterns will certainly challenge cultural norms and expectations about aging and work. It remains to be seen what kinds of impact this cohort will have on stereotypes about older workers as well as employment practices.

See also:

References:

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