The 1967 Age Discrimination Employment Act prohibited age-based discrimination in hiring and employment for workers age 40+.  Did it cause employers to eliminate age bias as effectively as laws regarding gender or racial bias? 

I don’t think so.  Several observers have said that age bias is the “last socially acceptable form of discrimination.”  But recent U.S. Supreme Court rulings are likely to change this thinking.

In fact, interpretation and enforcement of ADEA appears to have done little to influence workers’ opinions about the prevalence of age bias. More than 95% of workers believe age bias continues to be an obstacle to getting hired and staying employed. 

The evidence indicates that workers seldom succeed in their claims of age bias – if they ever even try to bring a claim or legal action.  Historically, workers had a pretty weak position if they believed they were the subject of age bias.  Legal costs could easily run into the tens of thousands of dollars. The EEOC and legal process could take many months and even years. An employee’s reputation could be damaged irreparably and fear of retaliation if the worker is bringing a claim against a current employer.

In those cases where employees have solid evidence of age bias, employers are inclined to settle outside of court and then bury the problem with a binding release of liability and a confidentiality agreement. This  conceals the scope and nature of their age bias problem.

In fairness, I want to say that I believe that there are increasing numbers of employers who are sincerely committed to defeating age bias.  These “age friendly” employers understand the value of the age 50+ worker and their obligations to comply with the ADEA.  These companies should be commended and recognized.

So what’s changed?  For starters,  a March 2005 Supreme Court ruling determined that it was sufficient that an employee could claim age-based “adverse impact” regardless of an employer’s intent.  For example, if a layoff disproportionately affected older workers, regardless of the employers’ method for identifying those to be terminated, age bias could be claimed. 

The only problem was that employers could readily establish that their action had “reasonable cause” other than age.  Frequently, employers claimed that their basis was cost reduction – and guess what?  A good effort by the Supreme Court, but it didn’t do the job.  Employers won virtually every legal action.  But let’s give the Court credit for moving in the correct direction in interpreting the ADEA.

Now here’s the surprise!  The 2007/2008 Supreme Court has rendered five decisions strengthening workers’ ADEA rights.  This is an extraordinary series of events particularly in light of vigorous opposition by employer groups and industry lobbyist. 

Could it be that the growing importance of the age 50+ population and workforce is getting some traction?  I follow age bias law and claims very closely and I am optimistic that we are experiencing a fundamental and favorable “sea change” in our society’s perceptions about aging.

On June 19, the U.S. Supreme Court determined that employers now have the burden to prove that they did not discriminate, and it is no longer the burden of workers to prove their age bias claim.  This seemingly simple distinction has major implications.  Placing the burden of proof on employers will make it easier for employees to bring age bias claims to court, and increase the probability they will prevail.

I don’t believe the news here is that it will be easier to win a claim.  To me, the best news is that the courts, and subsequently employers, will change their policies, practices and behaviors and take steps to insure their workplace is age neutral. My hope is, that as a result, age-based bias will begin to fade away. 

I also have a concern about unintended consequences.  I don’t deny that age bias and discrimination does occur.  And while I believe that age bias often results from management indifference or inattention, there are instances of deliberate disregard of the ADEA law and older workers' rights. 

My concern is that older workers may be too quick to yell “age bias.”  There really are instances where the older candidate is less qualified than the younger;  the older employee is not the best candidate for advancement or promotion and the older worker selected for layoff or termination is less skilled, productive and effective.  Whether an employee is 20 or 60, age should not be the deciding factor.  The ADEA is intended to prohibit discrimination based solely on age. 

There were times when I was selected for layoff or failed to get a job offer.  There was no way I was not the best candidate – just ask me!  The first thought in my mind (probably to soften the emotional blow) was that it must be age bias.  I learned that not everything that feels like age bias is truly age bias.

I hope that the new legal landscape will protect those subjected to age discrimination without triggering a flood of ill-justified claims. 

Do you think Supreme Court rulings will make a difference and do you believe employers and our society are ready to start writing the obituary for age bias?  I would like to hear your opinion.  Bob