Baby Boomers, Age Discrimination and a New Court Ruling

Older workers who feel threatened by millennials in the workplace just received more bad news. A federal law barring age discrimination in employment applies only to those currently employed–not those new applicants who may be applying for a job.

Seeking candidates with no more than seven years of experience

The plaintiff in the case, Dale Kleber, applied for a position as a senior counsel at CareFusion when he was 58 years old. The job posting said that they were seeking candidates with no more than seven years of experience, a restriction that would likely hurt the chances of older applicants. This criterion did, in fact, eliminate older, more experienced candidates. The result? CareFusion hired a 29-year-old candidate, and Kleber filed an age discrimination lawsuit in December 2014.

The ADEA has protected against age discrimination for more than 50 years

The Age Discrimination in Employment Act (ADEA), which took effect in 1968, is designed to protect workers age 40 and older from bias in the workforce. In a dissenting opinion to this ruling, Judge David Hamilton wrote that the majority was “closing its eyes to 50 years of history, context and application.”

Older workers being replaced by younger, less expensive staff

As employers look for ways to cut costs, eliminating their older, more experienced–and more expensive staff–can be easy ways to reduce budgets. Younger, less experienced workers come with a lower price tag. For many employers, it seems that experience has lost its value. But it’s not all bad news.

Looking to the UK for inspiration, olderpreneurs have found a way to thrive

In the UK, an estimated one in five people over 50 is self-employed—a higher proportion than for any other age group. They’re called olderpreneurs, and there are now nearly 1.8 million self-employed people over the age of 50, an increase of 21% since 2008.

Encouraging stories of valuing older workforce here at home

In an earlier article, we featured a New York Times story, Reaping the Benefits of an Aging Work Force, by Kerry Hannon, that shows how U.S. employers are finding creative ways to keep their older workers on the job. These employers value their loyalty, experience and strong work ethic.

• Military shipbuilding company Huntington Ingalls Industries operates The Apprentice School in Newport News, Virginia. It takes a long time to become a master shipbuilder, and this company places a high value on experience; an estimated 39% of their workforce is made up of baby boomers.
• PKF O’Connor Davies is part of a network of independent accounting and advisory firms, and they’re looking for ways to accommodate and keep their older employees. Strategies include working shorter hours and working from home at least a few days/week.
• Silvercup Studios is a family-owned film and television production company in New York. Two workers recently celebrated their 30th anniversaries with the company. Silvercup likes people with experience–they’re more settled and loyal. The company understands that the costs of acquisition and training are high and wants to keep good employees.

What’s next for the 8-4 ruling from Chicago’s full U.S. Seventh Circuit Court of Appeals?

“We strongly disagree with the decision and find it very disheartening that the court interpreted a civil rights law so narrowly, despite the statutory language and the great weight of Supreme Court precedent,” said Dara Smith, an attorney for AARP Foundation Litigation, which represented the plaintiff. “Mr. Kleber and all older job seekers deserve all of the protections Congress intended to give them. As of now, we are considering our options for next steps.”

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