Ageism in the Workplace and Its Legal Implications

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Table of Contents

Introduction
Problem Overview
Known Cases
Scholarly Opinion
Public Debate and Possible Developments
Conclusion
Works Cited

Introduction

The problem of age discrimination exists in various areas of people’s lives. However, in the workplace, this issue also becomes closely connected to the legal sphere. Currently, age discrimination is illegal in the U.S., and all persons older than 40 years old are protected from it by the Age Discrimination in Employment Act of 1967 (ADEA). According to this act, people deserve to be treated fairly in the workplace regardless of their age and cannot be demoted, fired, or denied benefits because of that.

However, in reality, this problem continues to exist in many businesses. It is possible that age discrimination continues to occur because it can be hard for employees to understand or even notice that they are being excluded from the discourse or unfairly judged by their coworkers and employers. Furthermore, the case of Gross v. FBL Financial Services, Inc., which is discussed below, also made it harder for workers to prove acts of discrimination occurring against them. The following research examines the problem of age discrimination, its legal concerns, and the overall perspectives from scholars, journalists, and other people.

Problem Overview

First of all, in order to understand what exactly is considered to be age discrimination, one can investigate the law mentioned earlier – the ADEA. According to this act, all persons who are 40 years old and above are protected by law from any type of harassment that is based on their age (“The Age Discrimination in Employment Act of 1967 [The ADEA]”). This includes negative verbal comments and pressure to step down from their position as well as actions that limit these persons’ career opportunities, promotions, and benefits (“Age Discrimination”). It should be noted that this act applies to companies with more than 20 employees, governmental institutions, and other types of organizations. Therefore, the reach of such legal protection is supposedly broad.

Moreover, some states also include workers who are under 40 into the act, although this practice is not as widespread. Currently, during the hiring process, employers have the right to infer about applicants’ age – the process of asking a question in itself is not illegal. However, this information cannot legally serve as a foundation for not choosing an individual or preferring somebody younger than him/her. Furthermore, job application advertisements cannot include any age limitations or explicit preferences, with the exception of some specific occupations (“The ADEA”). On the other hand, it is not illegal to “favor an older worker over a younger one” regardless of these people’s age (“Age Discrimination”). Thus, age discrimination usually includes persons who are 40 years old and above.

While the discussed act clearly prohibits age discrimination for all work-related processes, this issue continues to affect many men and women in the country. Most instances in which a person affected by age discrimination decides to appeal the decision of his/her employer are overseen by the U.S. Equal Employment Opportunity Commission (EEOC) that helps individuals to exercise their rights in court. According to the data collected by this organization, more than 24,000 charges were filed under the ADEA in 2008 (“Age Discrimination in Employment Act (ADEA) Charges”). More than a half of these receipts were dismissed on the basis of not having a reasonable cause. Therefore, one may assume that the problem persists because of the vagueness of the discrimination concept. It may be unclear which grounds for a lawsuit can be considered adequate.

Currently, older workers may face a number of common problems based on their age. First of all, people may be fired from their position regardless of their performance. Furthermore, it can be harder for older people to find a new job as some employees may put inexplicit limitations on applicants’ age. Finally, workers can be denied promotions and higher salaries. Thus, older persons may encounter obstacles at every stage of employment.

Known Cases

While many cases about age discrimination are filed each year, one particular example set the course for all consecutive instances and showed which opportunities and protections employees actually have. In Gross v. FBL Financial Services, Inc., Jack Gross filed suit stating that he was demoted by FBL because of his age. This case was brought to the Supreme Court in 2009. The court decided that in order to make such cases viable plaintiffs have to provide sufficient evidence of discrimination that has a direct link to their age. Hence, if one cannot prove that his/her age is the determining factor in being denied a promotion or being fired, the ADEA cannot be used in court.

This case clearly established limitations for future plaintiffs, showing that they have a duty to provide direct evidence. It became easier for employers to build their defense around the fact that age discrimination was not present in the situation, although the employee in question might have been older than 40. Therefore, Gross v. FBL Financial Services, Inc. negatively affected the position of older employees and possibly deterred many of them from pursuing legal action.

However, some recent cases show that a successful outcome in similar situations is possible. EEOC continues to represent unjustly treated employees in court. For instance, in Equal Employment Opportunity Commission [EEOC] v. Hawaii Healthcare Professional Inc., resolved in 2012, EEOC filed suit on behalf of Debra Moreno, who worked at Hawaii Healthcare as an office coordinator. The 54-year-old woman was fired after her employer, the owner of the company, made multiple inappropriate remarks about the woman’s age and appearance. In particular, she was told that she “looks old … sounds old on the telephone … [is] like a bag of bones” (“Court Orders Hawaii”).

The woman’s gathered evidence allowed her to sue the company and receive financial compensation for her termination. Moreover, Hawaii Healthcare was also ordered to monitor its managers and executives in order to avoid future instances of age discrimination under the supervision of EEOC. Such cases show that while plaintiffs have to provide substantial evidence to win lawsuits, legal action against discriminatory employers is possible. EEOC also has a large number of similar examples, in which employees were able to prove acts of discrimination.

Scholarly Opinion

The two cases presented above show that the enforcement of the ADEA became more nuanced after 2009 when plaintiffs received more responsibilities of proving their accusations. Many scholars also note that the concept of age discrimination and its description in the ADEA make is easy for employers to treat employees unfairly without explicitly showing their age-related biases. According to Malos, this type of discrimination is multifaceted as it includes many negative stereotypes related to aging (272). For example, gender becomes heavily related to aging in situations where older women are subjected to unfair treatment. This issue is also seen in the mentioned above case, in which an older female employee is told that she cannot represent the company because of her age. However, as Malos notes, employees may exercise these biases while not directly expressing them in a conversation (278). Therefore, such instances may be harder for an employee to define, leading to a difficult to prove suit.

Apart from gender, other biases may also have a significant impact on the problem of age discrimination. One’s health, especially the presence of disabilities, may significantly affect people’s attitude in the workplace. While Malon argues that age is not directly connected to health problems and limited abilities, many cases exist where workers’ age discrimination stems from these prejudices (275). Furthermore, Davey states that prolonged participation and employment support people’s health and ensure their physical and mental well-being, making such claims baseless (43). Therefore, scholars agree that age discrimination is mostly based on personal biases of employers and other people, which makes the problem not only legal but cultural as well.

By viewing age discrimination as a social issue, one may see that the process of combating it can be complicated. As Davey states, many companies and recruitment agencies support discriminatory practices and continue enforcing them because most instances are not recognized as problematic by the society (43). The author also argues that the enforcement of the law does not assist employees because employers learn how to avoid explicitly showing their biases (Davey 45). Thus, the present legislation may be rendered ineffective in many cases. In the U.S., the ADEA does not focus on hiring processes as much as retirement, limiting older people’s opportunities for finding a new job (Davey 45). Moreover, the protection of older workers expressed in this act makes it harder for them to be hired as some employers may not want to deal with age discrimination cases later. The problem continues to be pressing in the U.S. to this day.

Public Debate and Possible Developments

Age discrimination affects both men and women. However, as was noted above, women may face this issue more often because of societal biases based on one’s appearance and age. An article by Marcus investigates the discrimination of older female employees and the problem with the ADEA. The author argues that the act may help women to a lesser extent than men because of the concept of “physical attraction” which according to other studies may matter more to employers than males’ appearance (Markus). To prove this point, Markus mentions the case of Gross v. FBL Financial Services, Inc. and its effect on the ADEA enforcement by courts. According to Rockwood, an employer may focus on business-related reasons such as cutting costs in order to avoid age discrimination becoming a possible accusation. Thus, this “challenge of proof” becomes a concern for the women who lose their jobs without any benefits (Markus). The author agrees with scholars that plaintiffs do not have many advantages in such cases.

Using this information, Markus concludes that courts may not be an option for many older women facing age discrimination. The only advice related to legal practices that the author finds valuable is related to evidence gathering. In particular, she proposes recording conversations and documenting all negative interactions with coworkers and management. This action may help employees protect their rights and file a suit. However, other comments are directed at women and their behavior in the workplace. This shows that the current legal system may be ineffective at addressing age discrimination.

The examples of cases and experiences mentioned above show that the protection of workers from age discrimination is not enforced adequately. Therefore, it is necessary to develop new practices that will correspond with people’s needs to exercise their right to equal employment. As Davey points out, the ADEA does not discuss problems that older people may face during the hiring process in detail, which often makes these persons unable to find jobs after being terminated (45). Although they may win a case and receive a financial compensation, their future careers are not made stable by this act.

Conclusion

Age discrimination is an issue that continues to affect older people at all stages of employment. It includes the unfair treatment of persons who are 40 years old and above during hiring and working processes. Older persons are protected by the ADEA (Age Discrimination in Employment Act of 1967) which makes all types of discrimination and harassment illegal. However, this problem continues to exist in the workplace as it is multifaceted. Many implicit biases exist, and they sustain unjust practices in companies and recruitment agencies. The EEOC (Equal Employment Opportunity Commission) represents victims of age discrimination and helps them exercise their rights. However, as cases show, older employees are at a disadvantage because they have to prove acts of discrimination with direct evidence. As a contrast, employers may easily dismiss such accusations if an employee does not present documented proof. Thus, age discrimination laws have to be reexamined in order to improve the current situation.

Works Cited

“Age Discrimination.”EEOC, n.d., web.

“Age Discrimination in Employment Act (ADEA) Charges.”EEOC, n.d., Web.

“The Age Discrimination in Employment Act of 1967.”EEOC, n.d., Web.

“Court Orders Hawaii HealthCare Professionals and Its Owner to Pay over $190,000 for Age Discrimination.”EEOC, n.d., Web.

Davey, Judith. “Age Discrimination in the Workplace.” Policy Quarterly, vol. 10, no. 3, 2014, pp. 42-48.

Equal Employment Opportunity Commission v. Hawaii Healthcare Professional Inc., CIV NO 10 00549 ACK BMK. United States Court District of Hawaii, Government Publication Office, Web.

Gross v. FBL Financial Services, Inc., 557 U.S. Supreme Court of the United States, Supreme Court of the United States, Web.

Malos, Stan. “Overt Stereotype Biases and Discrimination in the Workplace: Why Haven’t We Fixed This by Now?” Employee Responsibilities and Rights Journal, vol. 27, no. 4, 2015, pp. 271-280.

Marcus, Bonnie. “Age Discrimination and Women in the Workplace: How to Avoid Getting Pushed Out.”Forbes, 2018, Web.

Rockwood, Kate. “Hiring in the Age of Ageism.”HR Magazine. 2018, Web.

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