Age discrimination refers to the prejudicial treatment or denial of rights based on age. It may occur directly or sometimes in an indirect manner. When a person hears statements such as these from an employer or prospective employer : “You are overqualified for this job”; “This is an entry level position”; “This job is too strenuous for you” it may mean that he or she is discriminating against the person on the basis of his or her age. Age discrimination can occur in hiring, firing, promotions, transfers and layoffs (OBLI 105). Age discrimination is illegal under state and federal law. As the baby boom generation, the largest demographic group in U.S. history has reached middle age and looks toward retirement, laws governing the treatment of older U.S. citizens have acquired a greater significance than ever before. Between 1970 and 1991, the number of workers over the age of 40 in the U.S. workforce rose from 39,689,000 to 53,940,000 (West’s Encyclopedia of American Law 1). This explains why major developments, both legislative and judicial have happened in the area of age discrimination in employment.
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Age discrimination can affect any individual irrespective of race, color, national origin or gender at some point in life (Noon and Ogbonna 9). In the United States as in most parts of the world, the age of 40 is seen as a major turning point in adult development. On the psychological side, age 40 is associated with onset of a diffuse sense of restlessness and unhappiness and a time of emotional upheaval when individuals lose firm control over their lives. On the physiological side, important characteristics of age 40 include declining bodily strength, deteriorating appearance, and reduced sexual energy.
On the occupational side, people at and above age 40 are likely to feel trapped in jobs they no longer find satisfying and yet are limited in their options by the vastly reduced opportunities that confront their generation. Resentment against age discrimination in the United States has reached a peak with the publication in 1948 of Conrad Miller Gilbert’s “We over Forty: America’s Human Scrap Pile”. A response to adverse employment conditions gave rise to the 1967 Age Discrimination in Employment Act, which specifically aimed at protecting people between ages 40 and 65. A 1979 modification of the law raised the upper limit to 70 (Kastenbaum 32).
The Age Discrimination in Employment Act (ADEA) of 1967, as amended, prohibits employment discrimination on the basis of age against individuals forty years of age or older. The act also prohibits mandatory retirement for nonmanagerial workers. For the act to apply, an employer must have twenty or more employees, and the employer’s business activities must affect interstate commerce. The EEOC administers the ADEA, but the act also permits private causes of action against employers for age discrimination. If a plaintiff can establish that he or she was a member of the protected age group, was qualified for the position from which he or she was discharged and was discharged under circumstances that give rise to an inference of discrimination, the plaintiff has established a prima facie case of unlawful age discrimination.
The employers must now give a legitimate reason for the discrimination, or else he will be held liable under ADEA. Those who are under the age of 40 are not protected by the ADEA; under federal law, an employee cannot make a claim of age discrimination until reaching the age of 40 (Nolo 1). The ADEA prohibits discrimination in all phases of the employment relationship, except benefits and early retirement, which are addressed by a different law (Nolo 1). The aspects of the employment relationship that the ADEA governs include help wanted ads, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination. Under federal and state laws, it is unlawful for an employer to retaliate against a person for complaining to the employer or to an agency about age discrimination.
State and federal law provide different remedies for persons who establish that they were discriminated against in their jobs because of age. Under state law, it is possible to recover a maximum of two years’ back wages and benefits lost because of discrimination (OBLI 106). Federal remedies are broader and include the recovery of lost back wages from the date of discrimination to the date of judgment, plus a penalty equal to the lost wages for willful violations of the ADEA. Both state and federal law allow recovery of reasonable attorney fees and costs associated with bringing an age discrimination lawsuit if the person wins the case. In addition, state law allows for the recovery of expert witness fees (OBLI 107).
A federal court in New York held that a 61 year old grandmother, who was rejected from a part time sales job with a GapKids store after a cursory interview, could proceed with her age discrimination claim against the clothing retailer (Ford et al 25). The court ruled that the applicant had provided enough evidence that her rejection for a job at the store was a pretext for age discrimination. Hertz v. The Gap Inc., 1997 WL 777375 (S.D. N.Y. 1997) (Ford et al 25). A federal judge in Washington D.C. held that the National Press Club did not engage in age discrimination when it terminated its controller at age 50 and replaced him with a computer. The court found that the lack of a younger replacement automatically defeated the controller’s ability to present a prima facie case of age discrimination. Newbury v. National Press Club, Inc., 1997 WL 602549 (D.D.C. 1997) (Ford et al 26)
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However, it must be noted that not every kind of age discrimination is illegal. For example, both federal and state law honor compulsory retirement for certain highpaid executives at age 65 and for tenured faculty at higher education institutions at age 70. Employers may also legally discriminate on the basis of age when a job requirement is necessary to the normal operation of a business, such as safety in the transportation industries. Oswick and Rosenthal have revealed that older workers are frequently discriminated against by managers of similar ages; it is not simply the case that the ‘old’ are discriminated against by the ‘young’ (Noon and Ogbonna 9).
Older people, particularly those aged 62 and older, are protected against age discrimination in some places. They are protected against their creditors and lenders. Federal laws also forbid age discrimination by programs and activities that receive federal funds such as hospitals, mental health centers, legal aid programs, the Red Cross, government-assisted housing and public schools (OBLI 107). However, older people are not protected from age discrimination by private landlords.
As a result of age discrimination being made illegal in the United States one would expect engineering professionals to experience a life-time of challenging rewarding work without the fear of unemployment during the latter years of their careers. But due to the pressures of global competition, corporate acquisitions and mergers, restructurings and plant relocations, cost-reductions, executive bonuses based on the bottom-line, etc., older engineers are not preferred in the workplace. Their skills are found to be out of date and their salary demands are too high. Moreover, they are not considered to be as reliable as younger workers. The U.S. career services and public policy arm of the IEEE, with 230,000 U.S. members to represent, has introduced the IEEE-USA’s Older Workers Initiative to protect older engineers from age discrimination as it believes that older engineers are as skilled as their younger counterparts and the value an engineer adds to the national economy and society grows with experience.
The literature review in the realm of age discrimination in the United States throws up interesting conclusions. Studies in the realm of industrial gerontology literature and industrial psychology literature show that age is a factor that is considered when making decisions regarding recruitment and promotion (Adams and Neumark 1). Second, thousands of ADEA cases that are resolved and deemed worthy of merit by the EEOC indicate that age discrimination as defined and recognized by the law – is an ongoing phenomenon in U.S. labor markets. Third, while older workers perform relatively well in the labor market in terms of wages and employment, they perform poorly in terms of unemployment duration, the probability of getting hired, their incidence of displacement, and the consequences of displacement in terms of re-employment earnings. Fourth, studies have found evidence for a link between age discrimination and adverse outcomes (Adams and Neumark 1).
The charges of age discrimination continue to increase despite the fact that more and more employers are embracing experienced workers now more than ever. Older workers are considered as assets to the company because of their experience and high skill level. Yet, age discrimination charges filed with the United States Equal Employment Opportunity Commission continue to increase. In fiscal year 2002, 19,921 charges were filed with the agency, up 14% from the 17,405 the previous year. That is the highest increase among all kinds of discrimination categories such as race, gender, national origin, religion, and disability. The fear of age discrimination is prompting many workforce veterans to abandon the job market and start a business.
Thus age discrimination in the United States is illegal and is tackled through federal and state laws. As a land of equal opportunities, the United States government tries to ensure that no person is deprived of opportunities on the grounds of his age. Moreover, it is only fair that older people are valued for their experience and skills. But there are jobs which only the younger people can do better. In such cases, it must be understood that age discrimination is not illegal.
Adams, J. Scott and Neumark, David (2002). Age Discrimination in U.S. Labor Markets: A Review of the Evidence. Public Policy Institute of California Working Paper No. 2002-8. Web.
Ford, E. Karen; Notestine, E. Kerry; Hill, N. Richard; American Bar Association Tort and Insurance Practice Section (2000). Fundamentals of Employment Law. American Bar Association. 2000.
Kastenbaum, Robert (1993). Encyclopedia of Adult Development. Greenwood Publishing Group. 1993.
Nolo (2006). Avoiding Age Discrimination. BNet. 2006.
Noon, Mike and Ogbonna, Emmanuel (2001). Equality, Diversity and Disadvantage in Employment. Palgrave Publishers. Basingstoke, England. 162.
Oregon Bureau of Labor and Industries (OBLI). Chapter 10: Age Discrimination. Page 105-110. Web.
West’s Encyclopedia of American Law (2005). Age Discrimination. West Publishing Co. St. Paul, Minneapolis. Web.