Older workers are the fastest-growing group of Americans – and also some of the most vulnerable to adverse action on the basis of their age, which is a protected status under state and federal civil rights law. As age discrimination lawyers can explain, the law protects workers from age-based bias starting at age 40, but those over 65 are the most at-risk.
These individuals in decades past did not continue their careers much beyond this time, if at all, but that’s been changing. Reasons for this include:
- Wage growth stagnation
- Disappearing pensions
- Delaying claims to Social Security benefits to maximize payouts
- Longer lifespans
- Not having much of a retirement to speak of or fearing it will run out way too soon
A survey conducted last year by Gallop found that more than 40 percent expect to work beyond age 65. That’s a sizable uptick since 2004, when 26 percent answered the same, and almost quadruple what it was in 1995. It’s likely to continue this upward trajectory.
Despite this, many companies are still bound and determined to hire younger workers. They actively recruit those millennials. In fact, some even weigh their own success on the basis of what percentage of their workforce is comprised of younger workers.
This starts at the recruiting/hiring stage. Firms will list a “maximum” number of years of experience the want. In turning down applicants, some firms will use terms like “overqualified” as another way of saying “too expensive.” In describing the corporate culture of a firm, ads might describe a place as “fun” or “vibrant.”
Unfortunately, as our age discrimination attorneys know, proving it after the fact can be difficult. Older workers surveyed by the AARP say age discrimination is rampant, with 61 percent of respondents over the age of 45 reporting either witnessing or experiencing discrimination at work on the basis of their age. Protections for older workers have also been weakened by the fact that key provisions of the Civil Rights Act were successfully challenged in a recent U.S. Supreme Court hearing.
Specifically, we’re talking about the Age Discrimination in Employment Act, which was established in 1967 per Title VII of the Civil Rights Act. The original civil rights act doesn’t cover discrimination, but ADEA does. However, the 2009 SCOTUS ruling of Gross v. FBL Financial Services, justices set higher standards for employees to prove that it was in fact one’s age that was the deciding factor for discrimination, and not race, color, religion, gender or national origin.
There is talk that Congress could restore the pre-Gross proof standard, which would allow workers to submit “any admissible evidence” in order to prove age discrimination. Bipartisan sponsorship of the bill – Republicans from Iowa and Wisconsin and Democrats from Pennsylvania and Virginia – gives some hope that it may pass, though similar legislation has failed twice before. Another plus is that one of the key sponsors in the House sits on the Education and Labor Committee.
The measure is important because individuals hoping to prove age discrimination face a higher burden of proof than those filing claims for employment discrimination of other types. For those rights outlined in the Civil Rights Act, they need to show the discrimination was a motivating factor for an adverse employment action – even if it wasn’t the deciding factor. That was precedent set in the 1990s by Congress. However, there was always question as to whether this applied to age discrimination too.
The Gross decision established that it would not, and that the higher burden of proof was on the employee. The proposed bill in Congress would apply the same proof burden standard to age discrimination cases as the others.
Given that 10,000 people are turning 65 every day in this country, our Los Angeles age discrimination lawyers hope this is something to which Congress will pay closer attention.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Gross v. FBL Financial Services, 2009, U.S. Supreme Court
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California CROWN Act Would Combat Race Discrimination Based on Hairstyles, April 23, 2019, Los Angeles Employment Discrimination Lawyer Blog