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 

At about age 40 I was pretty certain I would be able to retire at 55, maybe 58 at the latest.

 I wasn’t sure exactly what I would do with my time (at age 40 I could still think of a lot of things) – I just knew I wasn’t going to be working the 60-hour weeks that had been my routine since getting out of the service. 

 I was earning a pretty good income and had been building up savings to supplement my company pension, and social security.  Health insurance coverage?  Not a concern.  I was extremely healthy and the premiums were so low I never even paid attention to them.  Retiree health benefits?  I don’t even remember if they were offered by my employer.  I would never be sick enough to care.

 I’d give anything to be in that environment again.

 A few layoffs later and somewhat “north of 60,” I’m still working full time (and I’m fortunate to have a great job helping people age 50+ to find good work). I’m covered by employer-provided health care and my 401(k) and IRA accounts are almost back to where they were seven years ago. 

 Regrettably, I am no longer eligible for employer-sponsored retiree health benefits. I will receive a whopping $100 monthly pension from my employer of 30 years ago while premiums for health coverage cost more than $600 a month. My projected social security benefit will be equal to about 20% of my current salary (35% if I work until I’m 70). 

 To make matters worse, the retirement calculators you see on the Web suggest that I (or someone at my age) should be saving about 25% of my salary and earning 10% compounded returns on savings to maintain my current standard of living in retirement.  I estimate the cost of living (primarily food, health care, energy, and property taxes) for people over 60 is running at a 15 to 20% growth rate.  So: less income, higher expenses and more uncertainty.

 I’m getting too old for this.

 So what to do?  Inherit wealth?  None that I know about.  Marry into a wealthy family?  Too late.  Have numerous children who will take care of me in my golden years?  Too late again – I’m already in my “golden years.”  Avoid chronic and severe illness?  Once again, too late.  Been there – done that.  I never anticipated that getting older would be this difficult. 

 That leaves pretty much one path.  Eat wisely, exercise, keep learning and be prepared to continue or return to work.  Getting older may not be as great as we once imagined, but it beats not getting older!  In fact, recent research strongly suggests that older workers are happier and healthier.  So even if you don’t need the money, working may be good for you.

 There are actually quite a few meaningful, rewarding and enjoyable jobs available for age 50+ workers.  They may not be in your primary occupation, and they may not pay what you earned during your “peak earning years,” but that $10,000 to $30,000 in annual income may make the difference between scraping by and living nicely.

 At age 61, and after a lifetime of work in Human Resources management and consulting, I finally have the best job of my life.

I’m the Director of Research and “Chief Career Counselor” for the leading online career service for people age 50+ - RetirementJobs.com. 

I had 16 different jobs: paperboy, soda “jerk”, mailman, auto mechanic, landscaper, house painter, production line worker, computer operator, college instructor, plant supervisor, truck driver, soldier, warehousing manager, retail store clerk, customer service manager and accountant -- all before I turned  25!   None of these prepared me for a career in Human Resources.  But they did  give me a clear view of what working for a living entailed and the variety of jobs was ideal preparation for what I do today.

 I help age 50+ people determine how they can make a living or supplement their retirement income. 

Do you remember the “good-old-days” when you worked for an employer for a lifetime and retired with a gold watch, pension check and health care costs weren’t the biggest issue on your mind?  Within 10 years, this type of retirement will likely be forgotten.  We’re healthier, living longer and caught up in high tech, exciting times.  Studies indicate that more than 75% of us plan to work in some job beyond traditional retirement age.  For some, we’ll work of necessity to pay bills and obtain health care coverage.  Others will work because they choose to. 

Regardless of the reason, the evidence is clear that continuing to work in some fashion is good for your well being – physically, emotionally and financially.  Why not work at a job that is meaningful and rewarding?  Exploring and securing such a job is the topic of my journal.

Are there obstacles to finding your “dream job?”  Most certainly!  The workplace has changed a great deal.  Computer and communication technology has replaced paper, pens and stamps.  Having a personal computer and cell phone are now essential.  Skills, knowledge and capabilities that were unknown 20 years ago are now often considered fundamental.  You must be open to continuous learning.  And let’s not forget age bias.  Worker surveys indicate that more than 90% of people believe that age bias is a “fact of life” and represents a major obstacle to job seekers and workers age 50+ (and even 40+ in some professions and occupations).

Still, work-- whether as a volunteer in some form of community engagement-- or for a regular paycheck, is in the future for the large majority of us.  Why not be in a workplace that treats you with respect and dignity, provides competitive pay and benefits, and where the work can be meaningful, important – and even fun?

The job opportunities for older workers will blossom in coming years.  We are an important segment of the workforce.  We are capable, reliable, creative, diligent, productive and conscientious.  This journal will be a gathering place to share ideas, resources and opportunities about working at 50+.

I hope you will join in.

- Bob