Older and Out: Age Discrimination in the Workplace

We’ve witnessed the rise of civil rights, women’s rights, animal rights. Now, with a recession looming, we’re going to get nudged out of our jobs because of age discrimination? We don’t think so. MORE magazine reports.

By Amy Engeler

Tilley appealed in February of this year, then settled for an amount she cannot disclose. (She cannot speak about the case at all.) Bangert calls the case’s resolution an "unjust result and a failure of the legal system to remedy the real-life wrongs suffered every day by older women."

With the settlement money in her bank account this past spring, Tilley paid her son, now 11, to shred the piles of documents, some a foot high, that cluttered her dining room for almost four years. It took him several weeks to fill several dozen large plastic garbage bags, which he carried out to the curb for recycling. Free to move on with her life, Tilley recently switched careers, finding more satisfaction and freedom in selling houses for her husband’s real estate business. The timing was unfortunate, of course, given this year’s housing meltdown. But Tilley is hopeful. "Real estate is cyclical," she says. "It will cycle back."

Congress Steps In

"When women come to our office, they know they have been treated unfairly," attorney Lazar says. "But many of them can’t conceive, after the sacrifices they have made, that they will be cast aside — not promoted, or worse: terminated and given very little in terms of severance for their lifetime of dedication and loyalty." Often an employee’s first reaction, Bangert notes, is to blame herself: "If only I had done this or that better. If I had been more polite…"

For a generation of women who witnessed historic strides in abolishing discrimination based on race, religion, disability, sexual orientation and, yes, gender, it can be almost impossible to fathom that they might now be getting pushed out simply because they have reached a certain age. But recognizing an inequity is always the first step in resolving it, and by filing an increased number of complaints with the EEOC, women may have set the stage for the judiciary to take a second look at "age-plus" cases.

In a somewhat surprising change of course, the Supreme Court handed down several rulings this year favoring workers over employers. Perhaps the most important was a seven-to-one decision on June 19 that said, in effect, companies must prove that workforce reductions are based on "reasonable factors other than age." The case involved layoffs at the Knolls Atomic Power Laboratory, a federal research center in upstate New York where 31 people were let go, 30 of whom were over 40. Although Justice David Souter, in writing for the majority, acknowledged that the decision would make it more difficult for employers to defend themselves, he said the court had to follow the law — ADEA — "the way Congress wrote it."

The Lilly Ledbetter decision, with its ramifications for workplace discrimination of all types, touched offa firestorm. Congress did, as Ginsburg urged, "take up the matter," in a bill sponsored by Representative George Miller, a Democrat from California. The Lilly Ledbetter Fair Pay Act states that each discriminatory paycheck is a separate act of bias, triggering a new 180-day window for filing. The bill passed the House in July 2007 but fell four votes short in the Senate in late April 2008. Both Hillary Clinton and Barack Obama returned to Washington from the campaign trail to vote in the bill’s favor; John McCain did not but told reporters that if he had, he would have voted against the legislation because it "opens us up for lawsuits, for all kinds of problems and difficulties."

As MORE went to press, the bill was expected to be reintroduced in the Senate; if it hasn’t come up for a vote before the new Congress in January, it will have to be reintroduced in the House as well. Meanwhile, the barbs against older Americans keep coming — many now aimed squarely at McCain himself, who, at 72, may end up being the oldest person ever to be inaugurated as president. (A new book, 72 Things Younger than John McCain, lists six dozen familiar things — duct tape, the Jefferson Memorial, statehood for Alaska, area codes — that came into existence after his birth.)

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