Why It Makes No Sense to Fire Older Workers: Cose

This may be the worst time in the last 60 years to be old and looking for work. Some 6.8 percent of workers over 55 are unemployed (not as bad as for younger workers, but still a historic high). You have to go back to 1949 to find employment stats nearly (but not quite) as bleak as they are now. The bad news does not stop there. On average, it takes employees over 55 roughly 33 weeks to find new jobs, nearly seven weeks longer than for younger workers, and nearly 13 weeks longer than it took just two years ago. Bad as things are, the Supreme Court has made them even tougher—at least for those who believe they are victims of age discrimination and are inclined to try to prove it. (Click here to follow Ellis Cose).

The court's 5-4 ruling last June came in response to a suit filed by a demoted employee, Jack Gross, under the Age Discrimination in Employment Act (ADEA) of 1967. It was not sufficient, concluded the majority, to show that age was among the reasons for an employee's bad treatment; age had to be the reason. In his dissent, Justice John Paul Stevens called the decision "unnecessary lawmaking." The majority, he said, misread Congress's intentions. Last month, in introducing legislation to nullify that decision, Senate Judiciary Committee chair Patrick Leahy also accused the court of thwarting congressional intent.

At a Judiciary Committee hearing focused on recent Supreme Court workplace decisions, Jack Gross told his story. (The committee also heard from a former Halliburton employee who says she was raped by coworkers in Iraq but was denied the right to sue because she had unwittingly signed a binding arbitration agreement.) Born in 1948 in a small Iowa town, Gross grew up imbued with the value of hard work. As a schoolboy, he labored at numerous jobs despite the constant pain of ulcerative colitis. As an adult, he found work with Farm Bureau Life, an insurance company, and eventually became a vice president. But in his 50s, he was abruptly replaced by a younger woman. The company, he surmised, was systematically trying to weed out older workers. A jury found in his favor but an appeals court vacated the verdict. The case eventually made its way to the Supremes, whose decision "mortified" him.

The AARP was similarly disturbed—especially in light of statistics showing a 29 percent jump in age-discrimination complaints from 2007 to 2008. Dan Kohrman, senior attorney with AARP, concedes that the numbers don't necessarily prove a commensurate rise in age discrimination, but he insists they show something bad is going on. During hard times, he says, many employers resort to "crude practices" that drive older workers away. They may force supervisors to rank employees on subjective criteria—such as mental "flexibility"—that are essentially a license to discriminate. Or they generate paperwork alleging drops in performance that have no clear explanation.

Linda Barrington, an economist with the Conference Board, agrees that older workers are often stereotyped. Obesity," she observed, "is more of a health-care cost than age for those between 30 and 50." And older workers show every bit as much stamina as younger workers when called upon to put in long hours. Yet in all too many cases, employers see age as a much larger liability than it is.

Earlier this year, after another Supreme Court ruling made it harder for women to fight discrimination in pay, Congress passed the Lilly Ledbetter Fair Pay Act to restore rights many legislators assumed they had already protected. Congress ought to do the same for older workers, who should be given every legal weapon they need to fight discrimination. But even if that happens, age discrimination will not simply go away. Very few workers have the resources to bring a case to court. As Joanna Lahey, an economist with the Rand Corporation, has noted, "the majority of people who sue under the ADEA are white, male middle managers or professionals." And even if more people did have the financial resources to sue, many who are discriminated against don't have the smoking gun that will prove their case. They may just know the job or promotion they wanted went to someone else.

The larger problem, as Barrington points out, is how we tend to view people, the stereotypes we impose on workers of a certain age. It would be great if correcting that were as simple as changing a law. Instead, we face the more daunting task of changing ourselves.