Author Talk – Age Discrimination

Patricia G. Barnes will be at Joel Valdez Main Library on Saturday, October 27 from 11:00am to 12:30pm. Patricia, an attorney and former judge, is the author of Betrayed: The Legalization of Age Discrimination in the Workplace and Overcoming Age Discrimination in Employment. She will discuss what constitutes age discrimination, how the scale has moved in recent years, and why age discrimination has been epidemic and unaddressed for 50 years.

Age Discrimination in Employment: An Unseen Epidemic

In anticipation of the event, I asked Patricia a few questions:

How did you get involved with the topic of age discrimination?

I was a Reno, NV resident in Sept. 2011 during the lingering aftermath of the Great Recession when Reno’s official unemployment rate exceeded 14%. I was a single mother to a son who was a junior in high school. I was looking for a better paying job to help pay his college expenses that didn’t require a move.

I discovered quite by chance that a new office of the Social Security Administration was opening in Reno and I applied for one of five vacancies for the position of Attorney-Advisor. The position involved writing decisions for Administrative Law Judges.  Given my experience, I thought I was a shoo-in. At the time, I was a trial court judge and appellate judge, respectively, for two Native American tribes in Northern Nevada.  

I was not hired. I asked why and was told the hiring officer said I didn’t sound enthusiastic enough in a telephone interview. I later learned the Social Security Administration initially offered the jobs to five attorneys under the age of 40, many of whom were recent law school graduates. I also learned the SSA advertised the jobs in only two places that had populations with an average age of well under 40 -  a law school and an office of outgoing Peace Corps volunteers

I began researching federal age discrimination law and was appalled to discover that older workers literally are second class citizens under the law.  

The Age Discrimination in Employment Act of 1967 offers far less protection to older workers than Title VII of the Civil Rights Act of 1964 provides to victims of discrimination based on race, sex, religion, color and national origin. Moreover, the U.S. Supreme Court over the years eviscerated the already weak ADEA, making it extremely difficult to prevail in a federal age discrimination lawsuit.

There is no justification for treating age discrimination differently. All discrimination stems from fear, false stereotypes and dislike of a group with unique characteristics.

I have always been a writer. I edited a three volume series of books on domestic violence for a scholarly publisher and I wrote two books for CQ Press on the American court and criminal justice systems, respectively. I was a regular contributor to the American Bar Association’s magazine for several years. After the above incident, I began writing an employment law blog about the age discrimination and the legal inequality of older workers called Age Discrimination in Employment at agediscriminationinemployment.com.

Meanwhile, I learned that age discrimination was epidemic and unaddressed during the Great Recession. Older workers were dumped in record numbers into disproportionately long-term unemployment. Many spent down their savings, took poorly paid part-time or temp work, and were forced retire as soon as possible and suffer a penalty of reduced Social Security benefits for the rest of their lives.

As an older worker myself, I feel a sense of deep outrage that our government has allowed and, in some cases, perpetuated discrimination against loyal hard-working older Americans who have paid taxes for decades.

As an attorney and judge, what are some of the age discrimination cases you encountered?

I have seen many cases where older workers are barred from applying for jobs because of an arbitrary age range or experience limitations.

The U.S. Court of Appeals in Atlanta ruled in 2016 that the Age Discrimination in Employment Act protects only employees and not job applicants from systemic discrimination. The court dismissed a case against the R.J. Reynolds Tobacco Co. for using internet software to screen out the resumes of thousands of older workers. As a result, it is perfectly legal today for employers to engage in systemic age discrimination in Alabama, Georgia and Florida. The U.S. Supreme Court declined to review the case last year.

Perhaps the worst individual case of individual age discrimination I’ve seen involved Nicholas Spaeth, a 60-year-old former general counsel for three publicly held companies, including H & R Block. He applied for a tenure track teaching job at 172 American universities in 2010 but got only two interviews and no offers. Mr. Spaeth had successfully taught law for a couple of years as an adjunct and visiting professor. He also was a past Attorney General of North Dakota, a former U.S. Supreme Court clerk, a magna cum laude graduate of Stanford University law school and a Rhodes Scholar. He sued several universities for age discrimination. The first case to be litigated involved Georgetown University, which hired three 35-year-old applicants for teaching jobs in 2011-2012. One of the three had worked for two years as a “tax associate” at a law firm and had no publications. A federal judge dismissed the case on a pre-trial motion for summary judgement after rejecting the significance of Spaeth’s “smoking gun” evidence - members of the hiring committee had made ageist remarks and identified which candidates were older in their notes. Unfortunately, Mr.Spaeth died at age 64.

Has age discrimination always been a problem in society? Is it getting worse or better?

I think age discrimination became a significant problem in modern times during the industrial revolution, when workers left the farm and flocked to cities and manufacturing jobs. Historians say that employers fired older workers when they slowed down physically or they refused to hire older workers in favor of younger workers.

The situation is improving somewhat today but age discrimination is still epidemic and largely unaddressed.

There does seem to be more understanding that age discrimination harms both individuals and society at large. (Ultimately, taxpayers pick up the tab for age discrimination in terms of higher social welfare costs, including unemployment, Medicaid and increased Social Security costs.) However:

  • The U.S. Equal Employment Opportunity Commission virtually ignored age discrimination during and since the Great Recession. (In 2016, the EEOC received some 20,000 complaints of age discrimination but filed only two lawsuits with age discrimination claims.) Earlier this year, the acting chair of the EEOC said age discrimination was more alike than different from race and sex discrimination and would henceforth be a priority issue.
  • Until I began writing about this issue, the AARP had never acknowledged the legal inequality of older workers under the ADEA. A spokesperson for the AARP recently said there is a need for Congressional action to address the legal inequality of older workers.
  • Societal demographics have changed and many employers realize that they need older workers to avoid a labor shortfall. Also, there is increased recognition that older workers bring value to an employer in terms of institutional and industry knowledge, expertise and their ability to mentor younger workers.

But there is still concern that older workers have not benefitted from the economic recovery due to age discrimination.

I personally don’t think fundamental change will occur until Congress acts to change the law and insure that older workers receive the same level of protection as other discrimination victims.

What action can people take to counter the problem of age discrimination?

  1. Ageism isn’t funny. If you or a co-worker are the target of an ageist remark or action, don’t be silent. Speak up. Most importantly, keep a record. When and where did it occur? Was anyone else there to witness it? How did it make you feel?
  2. Avoid obsolescence. Ask your employer for training opportunities or undertake them on your own so you can keep up with a changing industry in a changing world.
  3. Adjust your attitude. It is possible that you are not best suited for a promotion or leadership role. It depends on how the position is defined and the competition. Older people today often work successfully for younger supervisors and managers. It’s better than unemployment.
  4. If you are a victim of age discrimination, don’t wait until you fear imminent termination to take action. Follow the steps in your employee handbook to file a complaint. When you complain, you put your employer on notice. The employer must investigate, stop any discrimination and insure that you are not the victim of retaliation for complaining. If your employer does nothing, it faces considerably higher damages in a lawsuit.
  5. Be aware that older workers often are targeted in a company-wide layoff or restructuring. If you are a party to such an action, talk to other people who are affected by the action and determine whether age might be a factor. If you are concerned, consult an attorney.
  6. It can be difficult to find an attorney to represent you in a federal age discrimination lawsuit because damages are severely limited under the ADEA. Often attorneys seek to prosecute age discrimination under a state law. But this isn’t always possible. Remember, it doesn’t cost you anything to file a complaint with the U.S. Equal Employment Opportunities Commission (EEOC). When the agency finds reasonable cause that discrimination occurred, it offers the parties no-cost mediation services to resolve the dispute. In exceptionally rare circumstances, the EEOC will file a lawsuit on your behalf.

Overcoming Age Discrimination in Employment