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Age discrimination a growing issue in a difficult economy

By Curt Burnett

For the Deseret News

Published: Thursday, March 8 2012 10:14 a.m. MST

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Robert sees a sad irony in becoming a victim of age discrimination.

“It was my generation – the Baby Boomers – that pushed through federal anti-discrimination laws in 1967," he said. "Yet, we’re still experiencing the bitter taste of age bias in today’s workplace.”

Robert, who just turned 65, has been searching for a job for several months. After a successful 35-year career in business, he retired in 2007 with what he thought was a sufficient nest egg. However, the subsequent recession and stock market collapse eviscerated his 401(k) and stock holdings.

“I knew it was unrealistic to expect to find a high-level position, especially during the worst economic downturn since the Great Depression. So I set my sights on mid-level positions within a variety of companies," Robert said. "I dutifully submitted applications for scores of jobs for which I felt well qualified with my extensive experience. In a few cases, I received a politely-worded rejection e-mail; most of the time, however, I received no response whatsoever. I can only attribute it to age discrimination.”

Age discrimination numbers on the rise

A growing number of older workers apparently share Robert’s perception of ongoing age bias, according to statistics from the U.S. Equal Employment Opportunity Commission. In 2011, the commission received 23,465 “receipts” or formal filings alleging age discrimination – 35 percent more than in 2001. In Utah, age-discrimination receipts totaled 181 in 2011, a 10 percent increase over the past decade.

“We’re seeing more complaints in large measure because there simply are more older workers in the workforce,” said Monica Austen, a case manager for the Utah Anti-Discrimination and Labor Division. “People also are more aware of federal and state protections against age discrimination and legal and administrative remedies."

According to the U.S. Bureau of Labor Statistics, the number of workers age 55-64 is projected to rise 40 percent from 2006-2016, nearly double that for those over 65. By 2016, workers age 65 and over are expected to account for 6.1 percent of the total workforce, compared with 3.6 percent a decade earlier.

Four in ten Utahns have experienced “at least one form of age discrimination in the workplace,” according to a 2001 survey by AARP. “About one in six say (he or she), a family member, or a friend has been laid off, fired or forced out of a job or has been encouraged to retire early because of age,” the survey indicated. “One in seven respondents say that since turning 40, (he or she) or someone close to them has either not been hired for a job or has received unwelcome comments about age in the workplace. Slightly fewer say that (he or she) or a family member or a friend has been passed up for a promotion, a raise, or been denied the opportunity to learn new skills.”

Michael O’Brien, an attorney with the Salt Lake City law firm Jones Waldo, said rising employment-discrimination cases are also a product of “difficult economic times."

“When the economy is strong, it’s easier for people who have been fired or laid off to find another job quickly – and they’re more likely to disregard perceived discrimination and move on with their lives," he said. "But with high unemployment, people are more fearful and willing to go to state and federal agencies with claims of discrimination.”

Identifying age discrimination

Age discrimination is one aspect of employment discrimination that is prohibited under the federal Age Discrimination in Employment Act that was initially enacted in 1967. According to the UALD, discrimination occurs when someone is treated differently – or when an employer takes action against an employee – because of that individual’s race, color, sex, pregnancy, disability national origin, age (over 40) or religion.

In a brochure, the UALD addresses the question of identifying age discrimination: “Many times an employee may feel that he or she has been treated unfairly by an employer. Personal conflicts, disagreements over management style or personality differences, or favoritism toward an employer’s friend or family members are all examples of unfair treatment, but do not necessarily constitute unlawful discrimination.”

Austen gave some insight into how the UALD judged discimination claims. “Unless there are statements that directly indicate a decision was made because of a discriminatory reason, the Division generally will look at how other employees are treated and if this particular employee was singled out and treated differently," she said. "Remember, the party alleging discrimination has to provide specific information and/or examples of how he or she thinks their treatment has been different than that of other employees in a similar situation."

She gave an example: “If a person is fired for having too many absences and alleges age discrimination, we would look at whether other employees have had a similar number of absences and whether older and younger employees are treated the same.”

Filing a complaint

The UALD says certain requirements must be met prior to filing a complaint:

  • The employer must have at least 15 employees.
  • A charge of employment discrimination must be filed within 180 days of the alleged discriminatory act.
The first step in filing a complaint with the UALD is to contact the office in person or over the phone to give details about the alleged discrimination.

"We also ask for copies of relevant documents – termination notices, letters of discipline, information about witnesses – along with other information you feel will support your case,” Austen said.

If the filing meets requirements, a “formal charge” will be created and sent to the complainant for signature. The case will be forwarded to the EEOC for dual filing under applicable federal laws. Within 10 days, the complainant and the employer will receive a copy of the complaint, along with an offer to schedule a “Resolutions Conference.”

“The conference is a voluntary opportunity to resolve or mediate the charge of discrimination with the aid of an experienced mediator,” Austen said. “It is not a hearing, and the mediator will not issue a decision on the case merits.”

If the parties reach a settlement, the Division prepares a settlement agreement and the case will be closed upon fulfillment of the agreement. If no settlement is reached, the case is assigned to a division investigator, who may conduct interviews, perform a site inspection and request additional information. The division may also hold a fact-finding conference. The division will issue a finding of whether there is “reasonable cause” or “no reasonable cause” to believe that illegal discrimination has occurred.

Either party may appeal the division’s finding by requesting:

  • An evidentiary hearing before an administrative law judge with the Utah Labor Commission;
  • A “Substantial Weight of Review” by the EEOC; or
  • A “Right to Sue Notice” from the EEOC.

O’Brien, who works with corporate managements, said discrimination cases “are difficult to bring” – an assessment borne out by 2011 statistics from the EEOC. The federal commission and the state agencies handled 23,465 complaints that resulted in the following types of resolutions:

  • "No reasonable cause” – 17,654, or 67 percent
  • "Reasonable cause” – 796, or 3 percent
  • “Administrative Closures” – 4,270, or 16.2 percent
  • “Merit Resolutions” – 4,396, or 16.9 percent

(Note: Total resolutions exceeded the charges because outcomes may be recorded in multiple categories.)

Monetary benefits from successful charges – not including litigated outcomes – rose 77 percent to $95.2 million in 2011, compared with $53.7 million a decade earlier.

“The burden of proof is on the employee or individual to show that age, race, gender, etc. was a factor that made a difference in his or her treatment," O'Brien noted of alleged discrimination cases. “We call it the 'but for' standard – in other words, ‘but for' age discrimination, the person would have been hired, promoted or not terminated. That’s not an easy standard to prove, because typically the employer is going to present evidence of some other performance and behavior problem."

“It’s challenging to prove ‘failure to hire’ based on age discrimination,” O’Brien continued. “The complainant would have to demonstrate that he or she was equal to or superior to the chosen applicant but somehow discriminated against because of age. That’s a pretty large hurdle and probably the reason we don’t see a lot of hiring cases."

Robert doesn’t plan to file an age-discrimination complaint because he can’t document a specific instance of illegal bias.

“I’ll just keep on submitting applications in the hopes that someone will get beyond my age and recognize a talented – and obviously experienced – potential employee,” he said.

Curt Burnett is a professional writer/communicator whose various incarnations have included Deseret News reporter, Senate press secretary and Vice President of Public Affairs for Questar Corporation.

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