"These women who broke the mold and got the positions now seem to be more easily disposable than the men in the same age group," says Wendi Lazar, a partner in the New York employment law firm Outten & Golden. "I think the reality is that most of the women who achieve success are excluded from the boys’ clubs that continue to exist at the highest levels. As a result, when there are layoffs, many of these women — particularly older women — are the first to go. They have no rabbis and little political protection."
Of all the employment biases, age discrimination can be the hardest to prove. That’s because "age is an area where stereotyping is somewhat acceptable," says Susan Coler, a partner at Sprenger & Lang in Minneapolis, where she’s handling a class-action age discrimination suit against 3M. "It can be hard to persuade a jury or judge that those age stereotypes are prohibited by law the way race and gender stereotypes are."
Think about what is socially acceptable today — and what isn’t — in terms of office banter. "We know now that sexual jokes are bad," Swain says. "Racial and ethnic jokes — not a good idea. But it’s still okay when someone turns 50 to bring in those black balloons or to call someone the grandma of the group … [If you’re older], you’re supposed to have a thick skin and take it."
One Worker Fights Back
Karin Tilley, now 54, of Littleton, Colorado, was determined not to take it. By 1999, in her late 40s, she was one of the top salespeople at the Denver Business Journal; at her peak, Tilley earned almost $190,000, pumped up by the commission rate she received: 15 percent, compared with the 10 percent that new hires typically earned. Tilley was also, according to the complaint in a lawsuit she would later file against the paper’s parent company, the oldest rep in her division (display ad sales).
In employment reviews and depositions from coworkers, she was described as likable and professional. Even with a 4-year-old son and a husband busy with his real estate business, she often went to the office on weekends to finish paperwork.
Tilley said in her complaint that after she sold more than a million dollars in advertising for two consecutive years, the publisher, Scott Bemis, told her that she made more money than anyone else except two men. (In its response to the complaint, the paper denied this allegation.) According to a determination from the Colorado Civil Rights Division (CCRD), in 2001 she learned that the sales categories were unevenly distributed among the staff; in spite of her success, Tilley felt that her earnings potential was severely limited by this disparity — she could bring in only nine percent of the paper’s total ad revenue, as opposed to, for example, the 20 percent allotted to 39-year-old Brad Segura, another sales rep at the paper. The CCRD also said that Tilley complained to her immediate supervisor, Denise Jendrusch, a woman in her late 30s, who reassured her that her concerns would be addressed.
But Tilley would not have been reassured had she heard the remarks coworkers later testified Jendrusch had made. They alleged that she expressed amazement at Tilley’s ability to keep up with a young child "at her age"; that she joked about how a male sales rep in his 40s wore his pants high on his waist "like an old man"; and that she described another employee as "an old, washed-up woman" and "an old biddy."
According to the CCRD, some of the sales categories were redistributed, but Tilley felt that the changes were not enough to redress the imbalance in earnings potential. She testified that she tried making a chart, and suggested redistributing categories based on seniority. But according to Tilley’s complaint, Bemis said that he would "not be bogged down with this minutiae." Tilley also alleged that Bemis responded to her complaints by pointing out that Segura "had a family to support." (In its response to Tilley’s complaint, the paper denied these allegations.)