Age discrimination: You want to work longer, but will employers cooperate?

Working longer offers one of the best paths to improved retirement security. But 50 years after passage of landmark legislation aimed at preventing age bias, our public policy remains out of sync with that goal.

The Age Discrimination in Employment Act of 1967 was part of a broad wave of civil rights legislation that included the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Discrimination based on age was rampant at the time of the law’s passage. Back in those days, more than half of private-sector job openings explicitly barred older applicants, and one quarter even refused to look at applicants over age 45. At the same time, employers were free to forcibly retire older employers based on age.

The ADEA made it illegal to “fail or refuse to hire” people due to their age, and prohibited age-related specifications in job postings. In later amendments, the ADEA was expanded to forbid mandatory retirement ages in most situations, and the upper age range of protection was expanded from 65 to 70.

Great progress has been made since ADEA’s passage. That is reflected in national employment statistics: in August, 2.3% of workers over age 55 were jobless, compared with the overall national unemployment rate of 4.4%, according to the Bureau of Labor Statistics.

But the jobs data mask underlying problems. Most experts agree the real jobless rate for older workers is much higher, because it doesn’t reflect discouraged workers who lost jobs during the Great Recession and subsequently gave up looking for work. The real unemployment figure is more than twice as high, according to research by the Schwartz Center for Economic Policy Analysis at the New School.

Protecting the rights of older workers will only become more important in the years ahead. The country is aging rapidly, which means a larger share of the workforce will be older. Moreover, rising longevity will require more people to at least try to work longer; that will be especially true if efforts in Washington to raise the eligibility age for programs such as Social Security and Medicare are successful.

Bringing an age discrimination lawsuit is expensive and complicated–and courts have been raising the hurdles for successful litigation. Importantly, a 2009 Supreme Court ruling found that plaintiffs must prove that age was the most important reason for dismissal or demotion.

In addition, online application forms and job search engines still discriminate by specifying maximum years of experience accepted for positions, restricting recruitment efforts to college campuses or requiring college-affiliated email addresses for applications. For example, some job postings list being a “digital native” as a requirement, which inherently excludes older workers born before the digital revolution began.

In recent testimony before the U.S. Equal Employment Opportunity Commission, Laurie McCann, a legal expert on the topic at AARP, stated: “In the 50th anniversary year of the enactment of the ADEA, ageism unfortunately remains pervasive in the American labor force. In a 2013 AARP study, nearly two thirds of older workers reported witnessing or experiencing age discrimination in the workplace, a figure that has remained stubbornly persistent.”

The EEOC is federal agency that administers and enforces the ADEA. McCann urged that the agency toughen its enforcement of the law, citing statistics showing lower median earnings for workers over age 55, and the prevalence of older workers in minimum wage jobs.
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  1. All of this advice has some truth to it, but let’s be honest. Supreme Court justices can stay on the job until they’re carried out feet first, and those are the very people who tell plaintiffs they have to prove age discrimination was the main reason they didn’t get hired or got fired. Good luck with that. HR departments that discriminate know all about CYA ( cover your *ss). Think they’re gonna leave a paper trail???

    I was reading a healthcare forum not long ago. One of the participants was an office manager who stated flat-out she’d never even consider hiring anybody over 40. So (as I have done), you can have gobs of extra training, with all the technology icing on the cake, and the sad reality is you still won’t have a snowballs’ chance in hell with many, if not most, employers. Everybody talks a good game about wanting workers who show up on time, have great customer service skills, are proficient in math, aren’t checking their smartphones every 2 minutes. But when push comes to shove, if you’re over 50 don’t hold your breath waiting for a callback.

    A far better idea is to develop alternate sources of income that don’t depend on anybody else deciding whether or not you’re ” worthy enough” to work for them. Being your own boss in some capacity is the only real solution, whether it’s an online business, a local service-oriented gig or developing passive income streams.

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