Proving Age Discrimination Is Harder Than Ever

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As if finding and holding on to a job wasn't hard enough. According to the U.S. Equal Employment Opportunity Commission, there's been a 17 percent jump in the number of age-discrimination complaints filed since the recession began in 2007. Federal law is supposed to protect workers 40 and older, but proving you've been denied a job or laid off to make way for younger and cheaper workers isn't easy. And the byproduct of a 2009 Supreme Court decision has substantially increased the burden of proof required to win an age-discrimination case.

NEWSWEEK's Nancy Cook recently spoke with Laurie McCann, a senior attorney with AARP Foundation Litigation, about what America's aging workforce needs to know. Excerpts:

Cook: Why has the number of age-discrimination complaints risen in the last two years?
McCann: To quote James Carville, "It's the economy, stupid." When the economy tanks, older workers bear the brunt through layoffs and reductions in force. And, once they've lost their jobs and they're trying to reenter the workforce, they get hit on the other end. In past recessions, we saw older workers who lost their jobs dabbling in the job market if they didn't find anything full time. We're not seeing that now. The number of unemployed older workers has increased by 330 percent over the last 10 years, and many unemployed older workers do not have the option of making a go of it in retirement.

We also think that number [of age-discrimination complaints] is low. Age discrimination is underreported. There's a lack of awareness about the law, or a sense of futility. Even if people think they lost their jobs because of their age, they don't have good proof. There's also an awareness of the emotional and financial toll it would take to pursue an age-discrimination claim. For an older worker, if it comes down to a successful age-discrimination claim or a job, he or she is more likely to put efforts into finding their next job.

How has the nature of the age-discrimination complaints shifted over the past few years?
Most of the complaints are still primarily about the termination, but I don't think that means it's the most common. That's just the easiest type of case to prove. When you've been terminated, you're either replaced before you leave or you have colleagues who still work there. You can see if the person who replaced you is younger. Discrimination in hiring is probably just as common, but there, it's almost impossible to prove. There are lots of online applications. You may not even get a response, and you have no idea what is driving the hiring decision. Federal law applies to anyone age 40 and older, but probably the most common age for discrimination suits are people in their mid- to late 50s. In more youthful professions like advertising or on-air media, age discrimination can start in your mid- to late 40s. It also hits women at a younger age.

In June 2009 the Supreme Court raised the bar for the type of legal proof that workers need to win age-discrimination lawsuits. How much harder is it to prove your case?
Older workers now face a far higher standard of proof than victims of race, gender, and disability discrimination. This ruling reinforced the perception that the Supreme Court has been perpetuating age-discrimination victims as second-class citizens. Now, it's not enough for an age-discrimination suit to show that age was one of the factors that drove a lawsuit. The court has interpreted it now that age has to be the sole cause. That is virtually impossible to prove, as we all know, because a lot of things drive an employer's decision making. Claims are being dismissed outright very quickly. Congress has introduced legislation to protect older workers, and AARP is hopeful it gets passed.

So what can older workers do to ensure that they aren't the victim of age discrimination?
Older workers, regardless of what industry you are in ... need to be lifelong learners. Don't cruise, and say, "I have a job and I'll just cruise along." Everyone needs to make sure that they're staying abreast of new developments in their field. You need to continue to dress currently and maintain your fitness level. You don't want to play into the stereotype that you're not adaptable, no matter what industry you're in. In industries where youth is valued over age, you need to do everything you can to protect yourself. As a society, we have a long way to go. You would never think to make a racist or gender-based joke at work, but it's perfectly acceptable to tease somebody about their age.