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Giving Older Job Seekers a Fair Chance

Finding a new career can be difficult for older Americans looking for a change

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Bob Edwards: Hello, I'm Bob Edwards.

Wilma Consul: And, I'm Wilma Consul.

Bob Edwards: With an AARP Take On Today.

Wilma Consul: Last week we heard from two people who took buyouts from their old employers, and made the best of it by planning new careers. However, buyouts are not so common, and leaving a job isn't always the worker's decision. As part of our series on work and jobs, we will explore how finding a new job can be especially difficult for older Americans, and how one worker is fighting back.

Bob Edwards: And to Dale Kleber, an attorney who applied for nearly 150 jobs in 2014 without a single interview, or a callback. Then he applied for a senior counsel position with CareFusion Corporation. The position he applied for listed a strange clause in the description, no more than seven years of relevant legal experience. That's right a cap, unexperience.

Wilma Consul: Kleber had plenty more than seven years of experience, and applied anyway. He did not get the job, but the fight was not over. Kleber sued CareFusion resulting in a legal fight that now has led to an appeal before the Supreme Court. As early as next week, the Supreme Court may announce a decision to review Dale Kleber V CareFusion Corporation.

Bob Edwards: Regardless of outcome, Dale is just one of many older workers who's felt the sting of age discrimination while seeking a new job.

Wilma Consul: Following Dale Kleber's story, Mindy Feldbaum joins us to discuss AARP Foundation's Back To Work at 50+ program, which helps older adults find new jobs, but first Dale Kleber.

Dale Kleber: I applied for the CareFusion job. It was one in a number of jobs that I applied for well over 150, probably, even more than that at the end of the day, and these were jobs that were available online that saw, that I fit their qualifications. I absolutely was highly qualified to do the job, and I applied. You do get to a point where you're just job, after job, after job. You either go under the black hole, or you get a nice polite electronic form letter, and so, what else? What might it be? And, it's not too difficult to get to the point where they can simply figure out how old you are, and decide that you're either too old, or overqualified.

I think those are overqualified, frankly, I believe is a code word for over-aged many times, not always, but in most cases, and I believe in my case, countless others like my case, I believe what really is going on is there is an inherent bias toward the older worker.

Bob Edwards: You're applying for this job, and you see that they're requiring, cap, on experience. Did alarm bells go off for you right there?

Dale Kleber: Well, they did, and particularly because they not only posited, or described as an element in their job description a cap, three to seven years, but then, they put a parenthetical after that seven years, and said, "And no more than seven years." Which logically isn't any different, but it's the equivalent of saying, "And, we really mean it, you know, three to seven years and absolutely no more than seven years. We really mean we don't want anybody to apply if he's got more than seven years of experience."

So, it's the equivalent of saying, if you're over 40 don't apply, and then, the parenthetical is, "And, we really mean it. No more than seven, you know, we, we, we we'll say it one more time if you didn't get it the first time."

Bob Edwards: Well, you sound like a valuable prospect.

Dale Kleber: I like to think so.

Bob Edwards: What do you think it's like for most older workers who don't have your level of experience or education?

Dale Kleber: I think it's very difficult. I think frankly in our culture, and I think our corporations are a reflection of a culture that is very much of a built in bias toward the younger worker, and person. I think that the age discrimination in corporate America is very subtle, but it's also very pervasive, and it's also very difficult to prove. I think that many corporations, and many hiring managers probably have a bias to hiring somebody that's younger than they are, and along with that bias is the idea that you aren't somebody that they think is more, perhaps you could hear the word hungry a lot, energetic and maybe more adept at technology, all of which I think are false stereotypes.

Bob Edwards: Did you think right away you had to fight for this in court?

Dale Kleber: It was certainly on the back of my mind. It didn't take me long to, the more I thought about it to decide that, you know, that really is blatantly discriminatory. Again, what's wrong with experience? I mean, what is it that would disqualify somebody from having too much experience? It's kind of like the analogy I give is a baseball pitcher signing up for a team, negotiating a package, and they tell them, "Oh I'm sorry you throw a 98 mile an hour fast ball. You're too fast. We only want you to throw a 90, or an 85 mile an hour fast ball, so you're disqualified." Why is experience a bad thing? Why is a pitcher who can throw fast a bad thing? I can't answer that.

Bob Edwards: How long has this fight lasted?

Dale Kleber: Well, I applied for the job in 2014, so it's going on five years now.

Bob Edwards: I'm dying to hear how they defend this in court.

Dale Kleber: Well, there's lots of defenses. I mean, primarily right now the defense is, this is not what Congress meant, and so, it's a question of legislative intent technically, and you can get into the policy reasons when you ask what did Congress mean when they pass these words? There's a lot of context for that. Not only the legislative history, the testimony, the committee reports, and so forth in addition to the law, but also, just the general policy of the ADEA, the Age, Discrimination and Employment Act.

Why did Congress ultimately pass that? The defense position in this, of course, is that the disparate impact theory is not available to older workers who are applying for a job. It's only available to older workers that already have a job. It's almost counterintuitive. Frankly, it's silly to think that when Congress passed the age discrimination laws, that their intent was to protect people that already have jobs in a greater degree than people that are looking for jobs.

Bob Edwards: All right. This seems like a pretty clear cut case for age discrimination, but it's been such a fierce fight. Why has this become such a saga?

Dale Kleber: Well, I think, I've been on the defense side as a corporate attorney, and I've been on the plaintiff's side as a plaintiff here, and I think that some corporations would say, "Oh my God, we're so besieged with discrimination suits for race, for gender, for national origin, for religion." But, I think it's a disparate impact type of... We all know what disparate treatment discrimination is. That's kind of an intentional discrimination, it's blatant, it's comments, or emails along the lines of, "Hey, we really need some new blood in here. We need someone who's young and hungry." Those kinds of things are disparate treatment.

Frequently there's a smoking gun for those, but disparate impact is basically you're engaging in a practice like this one unexperienced cap, which appears to be neutral on its face. I mean, it doesn't say no one over 40 should apply, but its effect, its indirect impact is really to basically achieve that result. I think employers are worried that somehow it's going to open up a Pandora's box of more costly litigation, and to that, I would say if you're not engaging in indirect practices that effectively discriminate against older people, you don't have anything to worry about.

Bob Edwards: Well, good luck to you.

Dale Kleber: Well, thank you very much.

Bob Edwards: That was Dale Kleber. We also reached out to CareFusion Corporation to see what they had to say, and here's the statement they provided to us read by one of our producers.

Producer: "Fostering an inclusive and diverse culture is at the very heart of Becton Dickinson's core values. We are deeply committed to providing equal employment opportunities in a workplace free from discrimination. As such, we are pleased that the Seventh Circuit Court of Appeals found in our favor." Christine Cardio, Spokesperson for Becton Dickinson, which acquired CareFusion in 2015.

Wilma Consul: Bob, what's interesting about Dale is that he's educated, well-trained, yet he couldn't find a job, and so, what more for someone who does not have say a high school diploma, a bachelor's degree, how hard could it be at this point?

Bob Edwards: Particularly, if they're of a certain age? I guess I left my fingerprints all over that interview. You know how I feel.

Wilma Consul: Yes.

Bob Edwards: The guy is clearly qualified.

Wilma Consul: We see this a lot. When I go back to our old workplace, I see a lot of very young people, and all these buyouts continue. You keep hearing it in companies. A lot of young people get their jobs, and a lot of people our age get pushed out.

Bob Edwards: I totally understand that. You want to see the next generation come along, you want that energy, you want that infusion, and in this case technical knowledge from the computer generation, but what you're missing is institutional history, you're missing gravitas. It's not always in a piece of paper, or in a book. It's an experience you've had. You've experienced situations, and they're instructive, and you learn from them, and hopefully, you can pass that on to the next generation, and there'll be wiser forward.

Wilma Consul: Well, I spoke with Mindy Feldbaum of the AARP Foundations Back To Work 50+ program. Welcome to Take On Today.

Mindy Feldbaum: Thank you Wilma.

Wilma Consul: Mindy, tell me about this AARP Foundation's Back To Work 50+ program.

Mindy Feldbaum: Our program helps older workers build the skills they need in today's job market, and also, in a rapidly changing economy.

Wilma Consul: Now, how do you find these participants? Do you seek them out, or they come to you?

Mindy Feldbaum: No, they come to us either through the contact center. Mostly they come, or they come into an organization, and the organization that we partner with recognizes that they're a good fit for the program.

Wilma Consul: Can you tell me a little bit more about the people that come to your program, the people that you help?

Mindy Feldbaum: Sure. The majority of them as we talked about are unemployed, looking for a job, and 90% are over 50, and older. Last year we served 4, 000 people. 2, 000 people got coaching, and over 1, 200 actually accepted employment.

Wilma Consul: Those are a lot of great numbers, Mindy, but can you tell me more about the type of people that walk in, and why this program is important to them? How has this helped people?

Mindy Feldbaum: First and foremost, they've been fired or laid off. They may be a caregiver coming back into the job market after a long absence. They could be someone who decided to retire, and realize that they didn't have the income to support the expenses. I think the one story that kind of sticks out for me is a woman named Lisa Edmond. She had been working at Sears for 40 years. She was 60 years old when she was laid off. Sears gave her like a small course she could take to try to get back into the labor market, but she felt overwhelmed by the whole prospect. She never even had to have a resume ever in her life.

Wilma Consul: Of course, 60 year, right? You're working for a long time.

Mindy Feldbaum: Right, she decided to take some action,, and so she went to what's called America's Job Center. It's our public workforce system, and to seek some guidance, and so, she found a incredible career advisor there who first just listened to her about her hopelessness, and her being overwhelmed by the fact that she needed another job, but the career advisor luckily talked about that she would be a perfect candidate for Back To Work 50+.

She enrolled in the workshop, and she realized there was a roadmap to trying to figure out what was next. She never even thought about what was next, but after she thought about it a long time, she expressed to us that she had worked many hours kind of moving up in Sears as an assistant buyer, and she didn't want to go back to those kinds of hours, that she wanted a job with work life balance, and more time with her family. What she really did was she looked at all different types of jobs that would translate well with her skills, and decided to really focus on customer service.

Wilma Consul: What is Lisa doing now?

Mindy Feldbaum: Lisa knew when she was focusing on customer service that she was never going to get the salary that she left at Sears, which is often the case of many older workers after they are fired, or laid off. They end up taking a job in a different field, and a much lower income. There's been studies by AARP, and others that show that this is definitely a trend that you end up taking a lower paying job.

Lisa though is pretty happy. She's working at a packaging company, Weber Packaging in which she is doing customer service. She loves her work, she loves her hours, and it's a nice company culture that cares about employees, so she's really happy that she got a job, and and that she's working full-time.

Wilma Consul: You talked a little bit about the grief, and the sadness that older job seekers go through. Why is job search different for older Americans?

Mindy Feldbaum: I think there's several reasons. One, like Lisa, she had been out of the job market for a very long time. A lot of older job seekers have been working at a job for a very long time, and the world of work, and the world of job search has certainly changed. There's now applicant tracking systems, and new ways to interview, and online networking. Things that didn't even exist 10 years ago, so that can be a little bit overwhelming.

Secondly, frankly, it's age discrimination. Ageism is alive [inaudible] and they sometimes feel that this is an enormous hurdle to overcome given these misperceptions of hiring managers around age, and so, to do it on your own is actually quite hard. We in Back To Work 50+ try to work with them to give them the confidence, and the skills to start looking for the right jobs.

Wilma Consul: I know you teach them a lot of strategies, right?

Mindy Feldbaum: Mm-hmm(affirmative).

Wilma Consul: Of how to get a job, but I'm kind of familiar with this because my sister is trying to get back to work after 20 years of not working, taking care of son, and then, our mother, and now, I'm telling her how to just do a simple resume. Even when I was going back to work, right? Looking for jobs, there are new things about resumes, so I want this to be a little bit of service to our listeners. Real quickly, what are some of the do's and don'ts of like a resume for our job seekers that we thought it was great before, but now honey, you can put that there, because they will date you, right?

Mindy Feldbaum: Exactly. Exactly. One of the first things we do is talk, kind of hone in on their resume, and really makes sure, first of all that they have an up to date email. That means, if you're using an email from [crosstalk] 10 years ago. Yeah, exactly. That kind of dates you, and we also encourage them, and job seekers to actually put no more than 10 years of work experience on your resume.

The other thing that I think is critical is to really hone in on what are the skills, and competencies that you have, and how it translates into other industries, and jobs, because when you're talking about skills that really, it kind of levels the playing field as opposed to just the years of experience you have.

The other piece we do, it's not something we love to do, but we want to prepare older job-seekers for perhaps inappropriate questions in the interview process about age. We don't want them to be thrown off at all, and it's certainly not legal, or okay to ask those questions, but it often happens, and so, we prepare our job seekers to ensure that they can get through the question very quickly, and move on, and focus on their skills, and why they're a good fit for the job.

Wilma Consul: Can you give an example of like at least one question that would throw them off.

Mindy Feldbaum: They may say what year did you graduate college, or something that certainly shouldn't be on your resume at this point. You would take any of those dates off, or if they do decide to have a long history, they may start back asking about skills, or they may ask you about kind of current skills, and kind of test you a little bit to see if you're current, and that's where you want to kind of focus the conversation is on the current skills.

Wilma Consul: How are older women impacted differently than men?

Mindy Feldbaum: Well, there's certainly a difference. First of all, women tend to live longer than men, so they need to usually work longer. They typically earn less than men as well as they often are mostly the caregivers, so they may be in and out of the labor market, whether they're raising a child, or whether they're caring for an aging parent, and that puts them at a very big disadvantage for better wages, and better jobs, and so, ultimately it can put them at risk for being in poverty later in life.

Wilma Consul: Mindy, how can our listeners, or their friends, or family get in touch with the Back To Work 50+ program?

Mindy Feldbaum: Well, I think there's kind of two simple ways. I think certainly calling our toll free number, which is (855) 850-2525 where our representative can help you with almost all your needs around employment, or supportive services, or you can go to our website, our AARP Foundation website. There's a Back To Work 50+ plus site where you can then register to go to one of our workshops

Bob Edwards: For more resources on making a change to your career visit

Wilma Consul: Become a subscriber on Apple Podcasts, Google Play, Stitcher and other apps. Be sure to rate our show as well.

Bob Edwards: Thanks for listening, I'm Bob Edwards.

Wilma Consul: And, I'm Wilma Consul.

As part of our series on work, we explore how finding a new job can be especially difficult for older Americans and how one person is fighting back with the assistance of attorneys from AARP Foundation.

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