Answer To "Ready, Willing, & Able" A Proactive Response To Age Discrimination In The Workplace

      The idea for this article came from a letter of complaint several years ago written to a career Website. The writer said they had recently been terminated from a position held for many years, and they believed it was because they were in their late 40s. Further, after diligently looking for work and having a number of unsuccessful interviews they had the strong feeling that age was a significant factor contributing to their inability to find a job. They wanted to know if the career expert felt this could be, and if so, what could they do about it? They signed their letter “Ready, Willing, and Able.”
The answer to the first part of the question was, “Yes, your failure to obtain a new job, with all your experience, surely could be because of your age.” Why?
All companies, large and small, are biased against older employees. This is a fact. After 23 years as a Human Resources executive, I’m ashamed to say I participated in this kind of activity, as well as others who did not have the best interests of employees at heart. There are several corporate issues that cause age bias. The very reasons older people are in charge of organizations is because they pay attention to matters important to the corporate culture. They share this view of age even though they are part of the group. Some of the reasons age matters are:
1. Older workers are often less willing to accept any whim of management; they may protest actions they don’t like. Young ones may not know any better, so they just go along with no complaint.
2. Experienced people might accept employment for less money than they want, but they will tend to be unhappy about it. Less-qualified workers have not known better pay and are less likely to be unsatisfied with lower salaries.
3. Mature employees have been trained in one or more work environments. It’s harder for them totally to accept a new corporate culture, especially if the one they were in was better. Younger people have little or no experience in corporate life and don’t perceive any changes in the way things are done as being anything but for the best.
4. Age itself is a threat to costs. Older workers become eligible for pension plans and statistically often use more medical benefits.
5. The longer people have been in the work force, the more they earn. This causes employers to look for ways to replace older workers as a cost reduction method. They certainly are not going to hire an older person to replace one they just succeeded in removing.
All these reasons are good ones from the company point-of-view, not so much if you are an employee. You may say, “Isn’t there a law prohibiting age discrimination?” There certainly is—the Age Discrimination in Employment Act of 1967 (ADEA). You can find more about this here. This site also explains how and where to file an age discrimination complaint. In most cases you have 180 days to complain; observe any deadlines to be effective. Here are the details of age discrimination charges filed and settlement details for 2007:

• 19,103 charges were filed.
  
• 1,795 of these were settled.
  
• 10,002 were dismissed for no cause.

More details of laws against age discrimination are here. Generally, the laws apply to workers age 40 and older and say:

• Workers should be hired and retained for ability, not their age.
  
  
• The ADEA applies to employers with 20 or more employees.
  
  
• An employer may not fire, refuse to hire, or treat you differently than other employees because of your age.

These are possible signs of age discrimination:

• You weren’t hired because the employer wanted a younger-looking person.
  
  
• You weren’t allowed to take additional training, but then you got a poor job evaluation because you weren’t flexible about taking on new assignments.
  
  
• During a period of tight money you were fired so younger workers could be retained who did not make as much money as you.
  
  
• You did not receive a promotion because younger “new blood” from outside the company was hired.

These are some activities ADEA forbids:

• Job requests can’t mention any age requirements.
  
  
• There can be no age limits for trainees.
  
  
• Age may not be a factor in decisions related to hiring, pay, promotions, or layoffs.

Regardless of these laws, whenever you enter a conference with a Human Relations official representing your employer, they will certainly know your age from your employment records and visual perception, meaning simply looking at you. It is entirely up to these executives what they will do with you, so, even if they don’t do forbidden things, they have in their mind everything about you. This could certainly result in some adverse action against you which you are powerless to contest because they never violated the law. So, if you are approaching 40 you will be at risk of losing your job the rest of your life. That’s why my advice is always to get out of the corporate world at your first opportunity.
Now, let’s look at two actual age cases:
In a California case, Mitsubishi Electronics America, California, was accused of establishing a policy to get rid of all managers over 40 and replacing them with younger, more aggressive people. This idea was expressed before the president and repeated at several executive meetings. Shortly after this series of meetings, a manger was fired and used these policy statements as the basis for an age discrimination charge. The California Court of Appeals allowed this reasoning, even though it was in the nature of hearsay evidence. Since the idea originated at the highest level of the company--its president--the Court said it was an implied policy which all subordinates could be expected to obey. Such a policy was a total violation of Federal discrimination law.
In Florida, Saks Fifth Avenue lost a case where two former employees were awarded a total of $600,000 by a federal jury for age discrimination. The two were long-time employees who said their manager moved them to a less desirable part of the store because they were “old.” In this area, sales opportunities were not as good as in the better part of the store; when the employees offered their customers discounts similar to those allowed in their former section, they were fired. Additional awards for pay and attorneys’ fees are still to be determined.
The point of discussing cases is to show that employers can’t use age for any employment decision unless the same policy applies equally to all employees regardless of age.
Advancing age brings with it the possibility of physical disability. This condition exists in many workers who are not over 40, but, as the years pile up, disabilities often follow. As with age discrimination, there is a law prohibiting work discrimination based on physical disability. It is the Americans with Disabilities Act (ADA) which is discussed here and here. The ADA applies to a person who has a physical or mental impairment that substantially limits at least one major life activity (like sitting, standing, walking, or sleeping). People who have physical conditions such as epilepsy, diabetes, HIV infection, or severe forms of arthritis, hypertension, or carpal tunnel syndrome may be individuals with covered disabilities. Also covered are most diagnosed mental conditions.
Employers covered by the ADA have to make sure that people with disabilities:

• Have an equal opportunity to apply for jobs and to work in jobs for which they are qualified.
  
  
• Have an equal opportunity to be promoted once they are working.
  
  
• Have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training.
  
  
• Employees covered by ADA must not be harassed because of their disability.

Examples of what an employer can ask under ADA:

• Whether a prospect has the right education, training, and skills for the position.
  
  
• Whether they can satisfy the job's requirements or essential functions.
  
  
• How much time off the applicant took in a previous job (but not why), the reason they left a previous job, and any past discipline.

Examples of what an employer can't ask:

• Questions about an applicant's physical or mental impairment or how they became disabled.
  
  
• Questions about an applicant's use of medication.
  
  
• Questions about an applicant's prior workers' compensation history.

Examples of what an employer can do:

• Give a medical examination to someone who has been offered a job that involves heavy labor, an employer must give the same exam to anyone who is offered the same kind of job.
  
  
• Withdraw an offer of a manufacturing job involving the use of dangerous machinery if the employer learns, during a post-offer medical exam, that the applicant has frequent and unpredictable seizures.

Example of what an employer can't do:

• Withdraw an offer to an HIV-positive applicant because of concerns about customer and client reactions, or because the employer assumes anyone with HIV infection will be unable to work long and stressful hours.

Here is a chart showing claims under Americans with Disabilities. Total Claims for 2007 were 17,734. Claims settled were 2,037 and those dismissed for no cause were 8968.
There is an actual disability claim case from California in which the University of California, without admitting any wrongdoing, agreed to add additional funding and expand programs for hearing-impaired students. They further agreed to pay the named plaintiffs $10,000 each in damages and cover about $1 million in plaintiff legal fees.
The 1999 lawsuit was filed by four former and current UC Berkeley and UC Davis students on behalf of other hearing-impaired students. It alleged the campuses failed to provide for the needs of hearing-impaired students, "effectively precluding an equal opportunity to learn. Under the settlement, UC Berkeley and UC Davis are required to provide "auxiliary aids and services at university expense" for hearing-impaired students who wish to take part in the Education Abroad Program.
This case illustrates the parts of the ADA that deal with making work available to qualified employees. When you don’t provide some accommodation for good workers, you effectively deny them the opportunity to be gainfully employed.
To see how the various kinds of discrimination charges are filed, look here. For the year 2004 total filings were 1,173. This is how they compared with each other:

• Disability - 371
  
• Gender - 306
  
• Race - 293
  
• Age - 177

So, in spite of the well-intended anti-discrimination acts, age and physical disabilities do play a significant part with the fact that Human Relations people always have the interests of their employer at heart. They know what these laws mean and they will operate within their boundaries so as not to generate legal problems. However, you can’t take away what they see and you can’t control their actions; that’s why you, “Ready Willing and Able,” are having a difficult time finding another job.
My advice to everyone, no matter their age, is don’t become involved in working for someone else, ever! There are many ways to make a living without having a real job. We’re all taught this paradigm from day one in all of our schools that you have to work hard and be loyal making money for someone else. Then you can use their generous retirement plans to live the good life. That’s totally untrue. So, go out on a limb. Stop worrying about how to make money for someone else. Find something you like to do that people will pay for and make your own way. With the Internet, it’s easier than ever. Forget Corporate America. Every single company out there would like for you to give them every moment of your entire life for free! That’s a fact. They only grudgingly pay because they have to.
Two books with helpful new ideas about work are:

• The 4-Hour Workweek: Escape 9-5, Live Anywhere, And Join The New Rich, by Timothy Ferriss.
  
  
• Free Agent Nation: The Future of Working for Yourself, by Daniel H. Pink.

These are two very important works that can help you escape the employer prison.
The ideas discussed in this article are particularly relevant to this time in late 2008 when the economy is in a steep decline, people are losing jobs by the thousands, and many are losing their homes to foreclosure. Any situation, even one as severe and fearful as the current economy, provides opportunities for those willing to look at the big picture and see beyond the confines of their front yards. This is such a time, and I implore all readers to pay attention and use whatever parts of this article may be appropriate to their own situation. Don’t be a couch potato or TV addict; get up and do something right now. You can make your own way out of whatever battle you may be fighting.