What To Do With Those Pesky Older Workers…Who Just Might Be You Someday (or Now)

It may not come as much of a surprise to our readers that more discrimination suits are filed in tough economic times. (See Kansas City Business Journal story.) As noted by a state antidiscrimination agency official in that article,

Laid-off employees think they have nothing to lose in filing a complaint when they think they haven’t gotten a fair shake. I’ve been with the agency for 30 years, and I can tell you that whenever we’re in good times, we don’t see large volumes of cases.

Older workers, in particular, are extremely vulnerable to economic fluctuations. So, not surprisingly, age discrimination complaints are up. (See New York Times article–free registration required). The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for initially processing discrimination complaints, reports a 24 percent rise in age-discrimination complaints over the last two fiscal years, reaching levels not seen since the early 1990’s. (See EEOC ADEA charge statistics).

What’s causing all the age discrimination complaints? Experts say that the increase largely attributable to the convergence of a weak economy and an aging work force. Nearly 50 percent of the labor pool is made up of baby boomers, and the percentage of workers over 65 has increased from the last decade. Succinctly put, there are now more older workers for employers to discriminate against, and more economic incentives to do so. According to Laurie McCann, senior attorney with AARP, the leading advocacy organization for older workers,

The knee-jerk reaction of employers is often that they need to cut costs, and since older workers are perceived as costing more, they become targets of layoffs.

Stereotypes about older workers also abound. Particularly pernicious is the belief that older employees are unable to keep up with and adapt to new developments, especially in sectors of the economy that say youth is essential to innovation and progress, like technology. According to one industry expert, “in the technology industry today, 35 is over the hill,” due to the relentless quest for youth that has always permeated the culture of technology. Such stereotypes are not limited to technology-related jobs. In another article examining age bias in detail (see Too Old to Work?), the author notes:

The problem is that workplace culture has, for the most part, stuck to old ways of thinking about older workers. In many elite job markets — investment banking, computer programming, publishing — youth is celebrated, and regardless of how young older workers may feel, they only have to look around to realize that they represent the old school, not the new wave.

Another contributing factor leading to the rising number of complaints is the perception of many companies that they can get away with age discrimination, as long as there’s some kind of economic rationale behind the decision. While a company cannot defend a race-discrimination claim by saying it acted for economic reasons, such as ”customer preference” — that it would happily hire black waitresses, but its racist customers would stop coming — companies frequently defend age discrimination cases by claiming older workers were selected because they were highly paid will often prevail. Especially in this economy, some companies are taking a calculated risk that their economic excuses will be accepted by courts in the event they are challenged by laid-off workers. Instead of targeting just one or a few workers, companies now decide to phase out entire job categories disproportionately held by older workers for “business reasons.”

Some companies are approaching their older employees a little differently, however, and possibly avoiding lawsuits from disgruntled employees in the meantime. (See Retired, But Still On the Job.) Recognizing that older workers still have something to contribute, and that a wave of retirements and/or layoffs could mean a significant “brain drain,” some companies have started innovative programs to allow older employees to keep working rather than fully retire. One firm, Aerospace, based in El Segundo, California, implemented a “retiree casual” program, which allows retirees to be hired back from time to time to solve problems, work on special projects and keep their valuable institutional knowledge on tap, while continuing to earn the same wages they did as full-time employees. Program participants are not allowed to accrue additional benefits nor work more than 1,000 hours per year, but that is because those receiving company pensions cannot both work full-time and earn a pension.

What Aerospace is doing not only benefits their older workers, but is a smart business move as well. The company not only is better able to deal with economic fluctuations than companies who have to lay off workers, then rehire and retrain new workers when the economy improves, but they also prevent the knowledge their workers have accumulated from benefiting their competitors. One survey found that only 16 percent of major companies offered a post-retirement work program, while others show that more than 25 percent of retirees find part-time or temporary employment to bridge the gap between the time they leave their primary careers and move into full retirement. In many cases, that means they leave their companies and work for the competition. While the Aerospace program is more appropriate for workers in their 60s and 70s, who don’t want to fully retire but who also don’t want a full workload, rather than workers in their 40s and 50s who have decades of full productivity left, it nonetheless represents a significant improvement over how some companies treat their older workers. Perhaps it’s something that companies who want to avoid the costs of litigation should seriously consider instead of mass layoffs.

Tracking image for JustAnswer widget
Tracking image for JustAnswer widget
Scroll to Top

Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.