Special Report: Has age discrimination become the new normal in the workplace?

Jordan Jones recently turned 60, but his birthday wasn”™t a very happy occasion. Jones is a media professional who lost his job three years ago at the beginning of the Covid-19 pandemic and he has yet to land a full-time position.

Jones is not his real name ”“ he requested a pseudonym because he has multiple job applications pending and is afraid that his vocal complaining about age discrimination will disqualify him for employment consideration. He stated that his inability to land a full-time job is because companies are not willing to hire someone of his age.

“I am not being paranoid. I”™ve been able to track who is getting most of the jobs that I”™m applying for,” Jones said. “One company had a slew of managerial openings and I met all of the criteria in the job listings. But my applications were ignored and I discovered that all of the openings went to young men in their early twenties, none of whom had any previous managerial experience. I filed a complaint with my state’s Department of Labor and the U.S. Equal Employment Opportunity Commission (EEOC) and received a settlement from the company, but I would have much preferred a job.”

Jones is not alone in complaining about age discrimination in the workforce. An AARP survey of 2,000 people ages 40 and up found more than three in five (64%) believing workers face age discrimination in today’s workplace, with two in five (41%) stating they”™ve experienced some type of ageism at work in the past three years.

The situation appears to be more severe among older women. A separate AARP survey of more than 6,600 women ages of 50 and older found 48% reporting bias based on their age. Black women in this age demographic reported the highest levels of ageist discrimination (70%), while 60% of Latinas and Asian American/Pacific Islanders said they are regularly discriminated against because of their age.

Separately, a survey of nearly 1,000 adults by Zety, an online resume building platform, found 78% of respondents stating they were discriminated against during the hiring process because of their age and 77% of respondents believing that most job postings target people under 40. The language of many job postings were particularly bothersome to these respondents, with 75% identifying the top three most hated phrases as “Able to work under pressure,” “Proven track record,” and “A young, energetic team.”

At a time when corporate human resources is being shaped by the principles of Diversity, Equity and Inclusion (DEI), the notion of age discrimination in the workforce seems bizarre. Is the DEI movement intentionally excluding older workers from its protection, or are other factors involved in this situation?

A Growing Problem

Age discrimination in the workplace is hardly a new concept. Federal protection for older workers was enacted with the Age Discrimination in Employment Act of 1967, which forbids discrimination in hiring and workforce practices against anyone at least 40 years of age. The fight against mandatory retirement practices was among the primary goals of the Gray Panthers, an advocacy group founded in 1970.

In more recent years, the workforce became unusual as four different age demographic shared space and vied for job openings: the baby boomers (born between 1946 and 1964), Gen X (born between 1965 and 1980), the millennials (born between 1981 and 1996) and Gen Z (born between 1997 and 2012). But unlike previous generations, more people are seeking to remain employed rather than retire when they reach the cusp of their senior years.

“People are living and working longer, and the 65-plus is the fastest growing segment of the workforce,” said Carly Roszowski, vice president of financial resilience programming at AARP. “Unfortunately, the age discrimination numbers and research that we’ve seen and data that we’ve seen is still high in this day and age.”

Amri B. Johnson, founder and CEO of the consultancy Inclusion Wins and author of the recently published book “Reconstructing Inclusion: Making DEI Accessible, Actionable, and Sustainable,” observed that as more older people remain in the workforce, the threat of age discrimination increases.

“Ageism is probably growing in terms of an ism ”“ and we can go through sexism, racism, etc.,” he said. “It’s probably growing as an ism more than any other. And so we’re in a really precarious position because right now there are so many people in the workforce that are over 50 years old.”

One of the most dramatic accusations of age discrimination in recent years was leveled against Armonk-headquartered IBM in a 2018 investigative report by the nonprofit news site ProPublica, which determined the company IBM eliminated more than 20,000 American employees ages 40 and over ”“ roughly 60 % of its estimated total U.S. job cuts ”“ between the years 2013 and 2018.

ProPublica reported that IBM “flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination,” adding that the tech giant”™s targeting of its older workers was a case of “how a major American corporation systematically identified employees to coax or force out of work in their 40s, 50s and 60s, a time when many are still productive and need a paycheck, but face huge hurdles finding anything like comparable jobs.”

While IBM has repeatedly denied it practiced age discrimination, it has settled more than a half-dozen lawsuits filed against it by former employees, most recently in January in a case involving eight laid-off workers. But IBM is hardly alone in being sued for age discrimination ”“ lawsuits have been filed against such diverse employers as 3M, AT&T, the Connecticut Department of Revenue Services, Eli Lilly, the Fire Department of New York, Google, the New York Mets and Novo Nordisk.

And among the entities that recently settled age discrimination lawsuits are the municipal government of Beverly Hills, California, Fischer Connectors, Ford Motor Co., PricewaterhouseCoopers, U.S. Bank and Wolters Kluwer.

Dr. Robert C. Bird, professor of business law at the University of Connecticut”™s School of Business, did not see the severity of the situation abating.

“As more older workers populate the workforce, and as there are greater numbers of older workers in the American population, it is inevitable that the amount of age discrimination claims will increase over time,” said Bird, adding that age discrimination complaints account for 20% of the EEOC’s investigations into alleged workplace bias.

A Surplus of Excuses

What is fueling this level of discrimination? Amri B. Johnson theorized that age discrimination in hiring could be the result of recruiters who don”™t perceive older workers as being an asset.

“Some of the hiring managers are younger, and it’s still about preferences, traditions and conveniences,” he said. They think, ”˜Let me let me work with somebody who’s more like me.”™”

Jordan Jones agreed with Johnson”™s observation. He recalled on five different occasions he was rejected for job consideration because the recruiting and human resources officers felt he lacked experience, ”“ even though he had been in the workforce since the 1980s. But when he started researching the companies who rejected him, he noticed a recurring trend.

“I went to their social media pages on Facebook and Instagram and I couldn”™t help but notice that all of the photographs of their employees consisted of people in their twenties and, perhaps, their very early thirties,” he said. “There were dozens of young people eating pizza together, packing boxes for charity drives together, hanging out in bars for happy hours. There was no one in any of these photos who was an age contemporary of mine. I am old enough to be their father or even their grandfather ”“ no wonder they weren”™t eager to hire me.”

UConn”™s Bird noted that older workers are often burdened with incorrect assumptions about their tech skills and work ethics.

“The stereotypes that come up for persons regarding age are often related to technology,” he said. “The stereotype will appear that older persons are not quick to learn technology, that older persons are unwilling to change when new technology appears, that older persons are less agile, and that they don’t want to work as hard as their younger counterparts.”

Bird also pointed out that sometimes younger managers believe older people belong at home rather than at work.

“Another issue can be that sometimes individual managers will make casual remarks that will imply age discrimination,” he continued. “For example, if a boss or manager repeatedly asks an older employee when are they going to retire or says something like ”˜Isn’t it time you stop working and enjoy your golden years?”™ Those kinds of questions are not illegal, but they’re unnecessary.”

Christopher S. Avcollie, managing attorney with the Southport law firm Carey & Associates P.C., highlighted that some employers actively seek to slow or derail the careers of the older members of their teams.

“One example of this may be where older workers are sometimes excluded from training opportunities and career enhancement opportunities because they’re not seen as worth investing in ”“ which often causes delays or stalled their careers because they are not given training and promotion opportunities at the say in the same way that their colleagues are,” Avcollie explained. “They are often put on performance improvement plans, which are simply designed to manage them out of the company ”“ they’re not really designed to improve their performance. And if they are, those performance improvement plans are based on specious or nonexistent accusations relating to their performance.”

Even the pandemic has been used as an excuse for age discrimination complaints. One recent case involved, Jon Chaiken, a 64-year-old former senior manager at the business publisher Red Ventures, who filed a lawsuit claiming that he was fired in March 2022 under the pretense of disobeying an order by company president Ric Elias that all employees were required to return to their offices. Chaiken had been working remotely since 2018 in order to care for his wife, who has a disabling medical condition, and his absence from the corporate offices had been previously approved by the company and the predecessor, CNet Media Group, which Red Ventures acquired in September 2020.

In his lawsuit, Chaiken alleged that his supervisor, Darshan Patel, acknowledged that his dismissal was not only due to the remote work issue, but because it was perceived he was of “limited value,” had “too high a cost” for his role and level and had “no career trajectory.” Chaiken”™s lawsuit added that “on information and belief, numerous other Red Ventures employees older than forty (40) years old were also fired in 2022 or felt pressured to leave, and were replaced by younger workers.” However, Chaiken”™s is the only discrimination case brought to date against the company; neither Elias nor Red Ventures”™ human resources office responded to a request for comment on Chaiken”™s lawsuit.

Fighting Back

In fairness, it should be noted that age discrimination does not apply to every situation where an older worker is dismissed.

“It’s important to remember that age discrimination only prohibits actions that are based on someone’s age,” said UConn”™s Bird. “Older workers can be fired for economic reasons, performance reasons, for stealing company property, misconduct ”“ any reason that would be grounds for discharge for any employee. Just because a worker is terminated and that worker happens to be over 40 years old, that does not necessarily mean that the decision was based upon age. And that’s a common misperception that any termination of an older employee is illegal, which is incorrect.”

Nonetheless, pushing back at age discrimination has been a challenge at many levels. ProPublica”™s investigation of IBM was published in 2018, and since then in-depth media coverage of the topic has been minimal. For the job-hunting Jordan Jones, media organizations do not want to touch the topic because of their own hiring practices.

“I can identify a dozen major news organizations who routinely hire young people straight out of college and put them into jobs for where they have no skills or experience, but they wouldn”™t think about bringing on someone in their fifties or sixties,” he said. “And when you consider that some of the companies being sued for age discrimination are major advertisers, the absence of coverage is not an accident.”

AARP”™s Carly Roszowski lamented the lack of media attention focused on the subject.

“I think it is under the radar, and that’s why we are having to fight harder than ever to continue to include age in that conversation around the DEI efforts,” she said.

To address that oversight, Roszowski highlighted AARP”™s Share Your Story campaign, an online resource designed to help educate older workers who might be facing age discrimination, as well as the AARP Foundation”™s litigation team that fights against age discrimination in the court. With the latter, she admitted, the challenge can be intense.

“It’s really hard to bring,” she said about age discrimination lawsuits. “Our foundation litigation team hears every day that age discrimination is one that it’s really, really hard to prove in the court.”

Attorney Avcollie recommended that it was important for a worker challenging an age-related firing to compile as much evidence as possible.

“Documentation is very important because of the difficulty in proving discrimination,” he said. “The things they need to document include remarks, comments or jokes around the workplace, instances where they are treated differently compared to similarly situated workers who are younger. And they should document their performance so they can show that there is no poor performance.”

In terms of bringing a complaint about age bias in hiring, Avcollie admitted that type of accusation “accusation is very difficult to prove. If they’re making it to the point of job interviews and they are being passed over in favor of candidates who are less experienced and perhaps less skilled than they are, they should document the circumstances surrounding the hiring.”

Dr. Cindy Porter, vice president of the DEI Division at Manhattanville College, called on human resources professionals to acknowledge age discrimination cannot be tolerated.

“Perhaps it doesn’t grab the headlines, for whatever reasons, but it’s very real and employees of a whole variety of ages experience it on a daily basis,” she said. “When you talk about diversity and you talk about inclusion, perhaps there is a tendency to focus on gender, ability or race. When you’re talking truly about being an inclusive community, you have to look at all aspects of diversity. We have laws that prevent any kind of discrimination for employees or individuals who are 40 or over in terms of hiring, promotion, or job assignments. Once we become aware, we have a responsibility to follow through on it and educate managers at all levels ”“ the hiring level, the supervision level ”“ about discriminatory practices, sometimes unintended biases that can come into play when we’re talking about age discrimination.”

Porter added that Manhattanville College is practicing what it preaches in terms of DEI and is cognizant that older employees are an integral part of its operations.

“When we’re talking about community, we want to have a place for all members of the community, regardless of age, race, ability, religion ”“ feel that they are a valued member of the community,” she continued. “To do that, we’ve got to define what we mean by an inclusive community at the college. We have to make sure that everyone feels they have a place at the college. And that’s hard work; it’s something that’s done by all members of our community.”

Amri B. Johnson added that human resources officers need to respond vigorously when complaints about age discrimination arise.

“It’s highly, highly, highly under investigated by practitioners, and it’s something that we need to do more about,” he warned. “And if we do it, I think we would see benefits because older workers bring something to the table that the younger workers don’t have ”“ that’s experience, and the ability to see history and bring that into the conversation and ask those questions. At the same time, we all have to build the skills to work across those differences.”