Age discrimination is a bias that strikes against all genders, ethnicities, and backgrounds.

A productive and equitable modern economy should tap the value of all generations of workers. As we strive for more diversity, let’s not forget that age diversity is a cornerstone of diverse workforce.

The Age Discrimination in Employment Act (ADEA), passed in 1967 and modeled on the Civil Rights Act of 1964, was designed to protect workers over 40 from being denied employment or from being let go on the basis of their age.

A tougher standard

Here’s the wrinkle with the ADEA. While the Civil Right Act uses terminology that classifies discrimination as having to be a “motivating factor” — but not the only factor — in establishing discrimination, the ADEA uses criteria that require age to be the single most important, or even the sole reason for discrimination.  Needless to say, this is a much higher bar to clear. A recent federal appeals case brought by the AARP on behalf of a Chicago lawyer (Kleber v. Carefusion) ruled in favor of the company and made the (to me) outrageous assertion that the ADEA was intended to protect existing workers at a company from being fired, not to protect new workers seeking employment. Read the text of the ADEA and see if you agree with this interpretation.

This ain’t going away soon

The battle is ongoing. We all know that employers are bending over backwards to maintain the appearance of compliance with the ADEA while coming up with resourceful ways of circumventing it.

  • Facebook’s audience targeting has been used by employers to only show job openings to younger candidates. How brilliant is that! Older candidates don’t even know they’re being discriminated against because they don’t even get to see the listings. In the face of looming lawsuits and a government complaint, the company has taken action to mitigate this practice.
  • IBM was outed last year by ProPublica for a coordinated and not-so-clandestine program to “cut old heads” and promote younger hires (through their now-discontinued “Millennial Corps”). The company is now facing a rash of lawsuits and a Equal Employment Opportunities Commission (EEOC) investigation. (If you haven’t read the ProPublica report, it is a doozy, and investigative journalism at its finest…)
  • Some wins along the way: Lockheed Martin was fined $51 million, including back pay, punitive damages, and penalties for firing a 66-year-old project engineer without cause. The Texas Roadhouse restaurant chain was recently fined $12 million by the EEOC for its age discrimination practices. In an interview with EEOC Director Victoria Lipnic, my colleague, financial journalist Chris Farrell, reveals that the agency has been steadily increasing its enforcement activities based on the growing number of complaints filed each year (over 18,000 in 2017).

Impunity and arrogance

When you read through the cases and stats, you realize that like other forms of discrimination, age discrimination is underreported and ferociously defended and protected by its perpetrators. Companies go to great lengths to disguise their ageist practices, and in the IBM case, for example, had the gall to fire people who were getting older, but then invited them to apply to contractor positions at lower pay rates and without benefits — and THEN instructed the hiring managers for those positions to NOT hire the former employees!

The irony of age discrimination, of course, is that EVERYONE is eventually subject to its effects, so it is, in essence, a reflection of our own denial and fear of getting old (and dying).

This is why age discrimination is “the last ism.”

The future: ominous or hopeful?

Does the Chicago case (Kleber v. Carefusion) constitute a harbinger of things to come? Will the courts continue to support age discrimination under the broad rubric of “deregulating” business practices? Or will that case get overturned by the Supreme Court?  Will Congress act to bolster the ADEA? The Protecting Older Workers Against Discrimination Act (POWADA) is a bipartisan Senate bill aimed at doing just that, but so far: no action.

My opinion: Don’t look to the courts or the Congress. They’re typically on the tail end of the innovation/leadership curve. 

Look instead at the demographics. Since the early 1990s, the number of workers 55 and older has doubled. As the aging bubble continues to grow (with the last baby boomer turning 65 on December 31, 2029), the number of older workers in the workforce will keep pace.  Women over 55 are also one of the fastest growing segments of the workforce. By 2024, they will outnumber women 16-24 by a two-to-one margin.

There’s an economic imperative at work here that employers can’t ignore. Employers are going be be better served by re-examining their bias and recognizing how older workers can improve their bottom line. Between the need for skilled workers, the need for more soft skills and life experience, and many other attributes that older workers bring to the table, I believe that the tide will have to turn because it is in employers’ best economic self interest

Rather than bemoan the retrogressive attitudes of the courts, we need to defy the stereotypes and bring our “A” game to every meeting and every interview. By being the change and bringing the value, we can dispel the false myths, and bring about a much more multi-generational workforce. 

What’s your experience with age discrimination in your work? Is it something you’re seeing every day, but not experiencing directly? Or have you been (or are you currently) the target of age discrimination?

If so, what are you doing about it? Do you think we should be fighting back, or using this as a “teachable moment” to bring generations together?

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  • John Tarnoff

    Executive & Career Transition Coach

    Reinvention Group LLC

    John Tarnoff is a Thrive Global Certified Executive Coach, workshop facilitator, speaker, and author who connects mid and late-career professionals to their inner calling, helping them transform their work lives into meaningful, purposeful, and sustainable. second act-careers. When his executive and entrepreneurial career hit a wall at age 50, he went back to school to earn a Master’s degree in Spiritual Psychology, which inspired him to create his own second-act career focused on education and training. His 2017 book, Boomer Reinvention: How to Create Your Dream Career Over 50, launched on CBS This Morning and became an Amazon best-seller. PBS/Next Avenue has named him as one of its Top Influencers on Aging. Previously, he served as a film studio executive and producer for companies including MGM, Warner Bros., Columbia Pictures, Village-Roadshow, and DreamWorks Animation. During the 1990s dotcom “bubble,” his startup, Talkie, Inc. pioneered AI-based chat bot technology for customer service applications. Clients included Sprint, AT&T, Scottrade, and Progressive Insurance. He joined the Thrive Global team in 2017 to support the company’s holistic vision of a balanced, productive, and engaged workplace. From 2010 to 2020, he served as an adjunct professor and Head of Industry Relations for Carnegie Mellon University’s Los Angeles-based Master of Entertainment Industry Management graduate program. John holds a MA in Spiritual Psychology from the University of Santa Monica, and a BA magna-cum-laude from Amherst College. A native New Yorker, raised in Paris, France, he now lives in Los Angeles.