Worried About Age Discrimination? Are You Kidding? It’s Thriving!

Sally Clark is 62 and unemployable. She’s savvy, high-energy and at the top of her game, an expert in branding. She would love to be working but can’t find a job. “I worked in corporate America for more than 40 years with big-name companies. But I cannot get a job–the same job I rocked 15 years ago. I can’t even get an interview. Nobody takes me seriously at my age–even at the job where I excelled.”

It’s a scary job market for those 50+ and it’s not getting any better

About 35% of the U.S. population is now 50 or older. And age discrimination remains a significant and costly problem for workers, their families and the economy. COVID’s tanking economy means furloughs and downsizing will have an even greater impact on an aging workforce.

Ivanka Trump just offered a suggestion to the millions of people who have been laid off or furloughed over the last few months due to COVID to just “try something new”. Well, Ivanka, finding something new for an older worker is going to be a whole lot harder in a climate where the unemployment rate is somewhere around 14% and growing. As businesses ramp back up, they’ll be looking for ways to streamline their operations and cut costs. That translates to an increase in contractors and younger employees who command lower salaries.

According to an AARP survey:

• Nearly 1 in 4 workers aged 45 and older has been subjected to negative comments about age.
• About 3 in 5 older workers have seen or experienced age discrimination in the workplace.
• 76% of these older workers see age discrimination as a hurdle to finding a new job; half of these older workers are prematurely pushed out of longtime jobs; 90% never earn as much again.

Victoria Lipnic, the Equal Employment Opportunity Commission’s (EEOC) acting chair compared age discrimination to harassment: “Everyone knows it happens every day to workers in all kinds of jobs, but few speak up. It’s an open secret.”

Age discrimination has a long-term economic impact

Nearly 30% of households headed by someone 55 or older don’t have retirement savings or a pension–they’ll have to continue working or rely on Social Security to survive. Yet workers at age 50 are highly skilled, at the top of their games and earning power. These should be important income generation years. But if someone is laid off and can’t find comparable well-paying positions, what remains open are unskilled, minimum-wage jobs.

As employers replace high-priced older workers with fresh, younger workers who are willing to work at significantly lower salaries they’re leaving a lot of intellectual capital on the table.

The socioeconomic consequences

Older people who don’t feel useful are three times more likely to develop a disability, four times more likely to die prematurely than their counterparts who are engaged in meaningful activity. If 30+ years of experience are suddenly discounted as irrelevant, the effect on your health and longevity take a toll.

Ageism: An accepted bias

The AARP Bulletin examined ageism in the workplace to determine why it is so prevalent and what can be done about it.

“Age discrimination is so pervasive that people don’t even recognize it’s illegal,” asserts Kristin Alden, an attorney specializing in employee rights at the Alden Law Group in Washington, D.C.  In the workplace, we found illegal age discrimination in:

• Recruitment and hiring, when younger applicants are shown favor simply because of their age.
• On-the-job bias, when older workers receive fewer training opportunities, promotions and rewards, or are harassed.

Ageism is the result of a culture obsessed with anti-aging everything

One big reason ageism remains an issue is our youth-obsessed culture that spent an estimated $53 billion on antiaging goods and services in 2019 alone. No wonder our resistance to growing old is shared by the companies that employ us.

Rising technologies that didn’t even exist until many older people were already well into their careers has led to hiring biases in which many organizations assume that younger workers will be more tech savvy. This is often not the case.

Not a lot to be gained from winning an age discrimination suit

Even if you win an age discrimination suit against an employer — and even if you prove the discrimination was intentional — the most you can be awarded is twice your lost back pay plus attorney fees if you prevail. Nothing for pain and suffering.

Over the years, it has become increasingly hard to prove that there was willful intent to discriminate based on age. An example might be a company deciding to lay off all its vice presidents. Nothing wrong with that, except that VPs are generally older workers.

A class action suit against PricewaterhouseCoopers, the accounting firm

The plaintiff, Steve Rabin, then 50, was rebuffed in his effort to obtain an associate position at PwC. He had an MBA and more than ten years of experience in accounting services. The complaint asserts that a PwC manager asked Rabin whether he’d be able to “fit in” with younger employees and made other somewhat derogatory age-related comments. More than 3,000 other plaintiffs have joined Rabin in a class action suit against PwC. The company, of course, denies wrongdoing.

Job ads address the age issue with descriptors that discourage older workers

HR departments know this is a problem. The average HR person would say, “Oh, yeah, that’s definitely a problem; it needs to be addressed.” They may try to avoid it entirely by creating job ads that use descriptions like “fast-paced environment, young and energetic, technology ninja’ or ‘We work hard and party harder.” These descriptions are code to older workers, telling them that they likely will not fit in.

Tech companies among the biggest age discriminators

Facebook CEO Mark Zuckerberg famously declared in 2007 that “young people are just smarter,” Silicon Valley is the poster child for the hip, hot youth culture. According to a 2016 report by Statista, the average median employee age at 17 top tech companies was 32, compared with 42 for the total U.S. workforce. A 2018 ProPublica investigation alleges that IBM deliberately engineered the dismissal of an estimated 20,000 employees over age 40 in a five-year period.

The EEOC is supposed to be our police force in all this

The EEOC’s job is to enforce federal laws that protect employees or job applicants from all types of workplace discrimination. Its mandate is also one of leadership: It’s charged with initiating investigations when warranted and being the overall champion of worker rights. But when it comes to age discrimination, the EEOC is struggling to keep up and to bear down. An analysis by The Washington Post found that of 205,355 total age discrimination complaints filed with the agency from 2010 to 2017, a stunning 1% resulted in a discrimination finding. While some of these cases may not have been actionable or too difficult to prove, this remains a shockingly low number of cases.

Many of our Living Trust clients are retired or thinking about retiring

Many of these clients are baby boomers, many are still working, and age discrimination is a topic that frequently surfaces. Our Trust package includes a Will, Power of Attorney, an Advance Healthcare Directive and Incapacity Planning. For most of our services, we charge one flat fee. Schedule a virtual or office appointment today. We guide you through it and we prepare the legal documents.

We service the entire East Bay and North Bay areas

Berkeley, El Cerrito, Richmond, Pinole, Alameda, San Leandro, Castro Valley Newark, San Lorenzo, Concord, Alamo, Danville, Lafayette, Orinda, Moraga, Pleasant Hill, Martinez, Pittsburg, Antioch, Brentwood, Oakley, Discovery Bay, Pleasanton, San Ramon, Livermore, Tracy and Fremont. Our clients also live in the Napa Valley, Benicia, Vallejo, Martinez, Fairfield.

This article is based on a story in AARP.

Seniors in the Workplace: Is 60 the New 40?

The employment landscape for those 60 and older

According to Inc. Magazine, there are now more than 76,000,000 Americans reaching the age of 60 and beyond, “and it seems they either can’t or don’t want to stop working.” An article in The Atlantic points out that employment in America of those aged 65 and older doubled between 1977 and 2007 and continues to climb. The employment landscape for those 60 and older has changed dramatically over the last decade. Employers are finding a lot of good reasons to hire older workers.

Seniors in the Workplace: Is 60 the New 40?

Another factor in the growth of seniors in the workplace is the changing nature of work; we can be productive far longer than in earlier eras. Sixty may be the new 40. Some jobs require cognitive skills that actually improve with age. According to a research paper entitled “Population Aging and Comparative Advantage,” these skills include technical writing, human resources management and numerous other disciplines.

The economics of retirement

The fabled retirement that Americans worked for and enjoyed decades ago may no longer be an option for today’s seniors. It’s increasingly rare to find an organization, even a union company, which offers a pension on which it is sufficient to live. Improved healthcare means that people are living longer. They’re taking care of themselves, eating better diets, exercising and remaining physically and mentally engaged. This longer lifespan requires more money.

Many seniors want to continue working

Also consider that an older person who may have enough money to live comfortably may want to work. Older people may be just as eager to contribute as they were when they were twenty. For many seniors, retirement just doesn’t work. They like the structure of having a place to go every day. They like the relationships, the sense of belonging. The mental stimulation that’s part of sharing ideas and problem-solving.

Consider the numerous benefits an older employee may provide. They:

• Are a steady and reliable source of skilled labor.
• Offer decades of relevant experience and, if they enjoy health coverage, may offer the experience you require for less money than a younger candidate requiring full benefits.
• Offer your younger employees valuable mentoring at no cost.
• Are more comfortable than younger candidates with flexible hours. Many seniors are happy to work part-time.
• Are not aggressively seeking to advance their careers at this point in their lives. You probably won’t have to worry about their playing political games that can spoil office environments.
• Offer stability. Turnover is expensive for every company.
• Are experienced problem solvers, seasoned and more engaged – they want to be involved, focused on tasks.
• More technological savvy than you think. Boomers are comfortable using computers. Where there are skill gaps, they can learn.
• Will appreciate an opportunity to work. Loyalty is a valuable commodity.
• Represent a large segment of the buying public and know that market better than the rest of your team.
• Already know what they’re good at.

Remember that many veterans are in this age group, and hiring those who have served in the military may contribute to your company’s ethos and brand.

California Document Preparers assists our clients in creating Living Trusts. A Power of Attorney and Advance Healthcare Directive are included as part of our Trust portfolio. Make an appointment today at one of our three Bay Area offices. Our dedicated team is helpful, compassionate and affordable.

Facebook’s in the News Again: This Time for Age Discrimination

Many employers have been happily leveraging Facebook’s detailed demographic data to target exclusively younger candidates in their job ads. The result? Once again, Facebook has found itself in the headlines for all the wrong reasons.

In this case, the company was the focus of an age discrimination lawsuit

These detailed data fields completely excluded older applicants. Facebook has reached a settlement, and the company will stop letting employers target ads focusing on younger candidates. The agreement is a victory for older workers—those who may never have known that technology was being used to discriminate against them.

Facebook’s rich data fields are now the source of their problems

Facebook’s extensive data collection is one of things we love about this application, but it’s the subsequent use of that data that has backfired on them. Facebook was permitting advertisers to direct ads only to those who fit certain demographic features. If an employer wanted to hire candidates under 40, Facebook would show the job posting only to those who fell within that range. Those whose profiles showed they were 40 and older were unaware the ad existed.

Advertisers microtargetus according to the data we provide

Think about it: Every time you fill out a field on social media, you’re helping advertisers “microtarget” you. The more information you provide, the more valuable your demographic profile—especially if you’re on the higher end of the scale in terms of earning range, education level, location and job title. The cumulative worth and mismanagement of these rich data fields are the reasons Facebook and other tech companies are finding themselves in hot water.

California is getting serious about information accountability

Mismanagement has brought the power of data to the attention of the public and Congress. Beginning in 2020, new privacy laws will go into effect. In the event of a data breach, for instance, consumers will be able to sue for up to $750 for each violation. The law also gives the attorney general the right to pursue companies for intentional violations of privacy.

The ADEA protects those 40 and older from discrimination

The federal Age Discrimination in Employment Act (ADEA) protects people ages 40 and older from discrimination in employment. “It’s crucial that microtargeting not be used to exclude groups that already face discrimination,” said Galen Sherwin, senior staff attorney at the American Civil Liberties Union (ACLU), one of the groups involved in the lawsuits. “We are pleased Facebook has agreed to take meaningful steps to ensure that discriminatory advertising practices are not given new life in the digital era, and we expect other tech companies to follow Facebook’s lead.”

Facebook: Ads prohibited from targeting by age, race, gender and sex

Facebook said it will build a new section on its site for companies that want to advertise for jobs and housing. In this section, companies will be prohibited from targeting ads by age, race, gender or any other legally protected characteristic. Facebook also agreed to permit the ACLU to monitor the site for three years to make sure that it fully implements the changes in the settlement. The investigative journalism website ProPublica, which was instrumental in revealing Facebook’s advertising practices, is reporting that Facebook also will pay the plaintiffs $5 million, which largely will be used to pay legal fees.

Data has become a huge business, and many believe it requires more stringent regulation. While Facebook has been the most visible company to be involved in data breaches, it’s not the only company that has been profiting from its sale. It’s the one that got caught.

Facebook CEO Sheryl Sandberg commits to doing more to prevent discrimination

“These changes mark an important step in our broader effort to prevent discrimination and promote fairness and inclusion on Facebook. But our work is far from over. We’re committed to doing more, and we look forward to engaging in serious consultation and work with key civil-rights groups, experts and policymakers to help us find the right path forward.”

California Document Preparers assists our clients in the preparation of legal documents inuncontested legal matters, including Living Trusts, an important part of estate planning. Our Trusts include a Power of Attorney and Advance Healthcare Directive. Schedule an appointment today by contacting us at one of our three Bay Area offices. Our dedicated team is helpful, compassionate and affordable.

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.”

Many of our clients are creating Living Trusts, so office conversations frequently span a range of senior-related topics, including Trusts as an important part of life planning. Our comprehensive Trust package includes a Power of Attorney and Advance Healthcare Directive. Schedule an appointment today by contacting us at one of our three Bay Area offices. Our dedicated team is helpful, compassionate and affordable.