Two Choices for Age Discrimination Victims: Be Patient or Give Up

This is an academic paper written for a news reporting class in December 2018.

For the sake of brevity, “age discrimination” will be referred to as “AD” in this paper.

The media accurately portrays age discrimination as an ongoing problem in the second decade of the 21st century. Despite mainstream acknowledgement of the issue, there is a disconnect regarding avenues that victims of AD have to improve their working conditions or return to work when wrongfully terminated. It takes many years for a plaintiff to experience the benefits of an AD lawsuit, as the court process is arduous. By the time an older worker wins an AD lawsuit, she is unlikely to continue working for the defendant company. The need for continuing income will cause an AD plaintiff to find another job, often in retail or an entry-level position, while his case against his former employer is tied up in the courts. Once his lawsuit is resolved after several years, the plaintiff will probably not return to work for the defendant firm due to lifestyle changes that have occurred in the interim.

News coverage of AD cases tends to sympathize with the plaintiffs, portraying them as champions who take on corporations in David versus Goliath scenarios. Media outlets fail to convey the reality that most AD litigants do not return to work for their former employers, even in cases they ultimately win. If the problem of age discrimination is going to be solved, older Americans need an expedited means to receive justice for valid AD claims, so they can more promptly return to work. This paper examines the history of AD legislation in the United States from the mid-twentieth century to the present, and perceptions of age discrimination that have been disseminated by the news media. It strives to identify areas of disconnect between mainstream perception of AD cases and the actual, years-long process that plaintiffs endure as they seek justice. Suggestions are offered for better coverage of age discrimination that will help eliminate this disconnect between media portrayal and reality.

Television and popular media tend to group older Americans into one basket of similar characteristics. The 55-plus retired couple is often depicted as active and vibrant, travelling around the country with the ample disposable income they have saved over several decades of hard work. Popular images of older Americans are motivated by the profit-seeking business of the companies that produce such images. The concept of accurate portrayal of the 55-plus demographic is lost in the fierce competition of the marketplace. Seniors should not be grouped into one homogenous category because they encompass people aged 55 through over 100. This group of older Americans spans a vast variety of lifestyles, health conditions, income levels, family situations, insurance policies, mobility levels, jobs, and states of mental and physical well-being (Collins). Accurate coverage of older Americans does not generalize. It considers a myriad of lifestyle factors on an individualized basis. In order to understand the full scope of the AD problem, it is necessary to recognize what is meant by the term ‘age discrimination’.

The United States Equal Employment Opportunity Commission defines age discrimination as any action by an employer that “involves treating an applicant or employee less favorably because of his or her age” (Age Discrimination). Although AD has been occurring for multiple centuries, it was first addressed by the United States Congress in the 1960s. President Lyndon B. Johnson implemented a myriad of social programs known as the “War on Poverty” during his tenure in the White House. Medicare, Medicaid, urban housing developments, food stamps, and vocational training legislation were born during the Johnson administration. President Johnson believed American society inadequately provided for the population’s needs and was therefore responsible for the growing national poverty rate of the early 1960s. Johnson saw no correlation between the individual actions and motivations of the people and their economic deficiencies (Cooley). Employment discrimination was not included in the landmark Civil Rights Act of 1964, another piece of legislation from the Johnson administration, which prevented companies from denying hiring Americans based on race, color, religion, or national origin. Despite the historic achievement the Civil Rights Act of 1964 gave supporters of the Civil Rights movement, the law did not protect American workers from discrimination based on age. Aware of the prevalence of AD during his presidency, Johnson assigned Secretary of Labor Willard Wirtz to conduct a study on age-based prejudice in the workplace (Lipnic).

The 1965 Wirtz Report provided several key insights into AD, many of which remain relevant in the present day. Wirtz found that companies tended to refrain from offering the most desirable jobs to people in their 40s, 50s, and 60s, and that some firms limited the maximum age for applicants to as young as 25 years. Older workers had “fewer acute health issues” (Lipnic) than their younger counterparts, but they were also more susceptible to chronic illnesses and therefore more likely to be rejected from hiring or promotions based on health conditions. The secretary’s report noted the significant loss of economic production caused by the exclusion of older Americans from the job market. Unemployment costs, early Social Security payouts, and the loss of social capital initiated by capable older workers staying home, were putting a strain on the national economy. Wirtz pointed out that AD was legally classified as distinct from other forms of employment discrimination, due to the fact that AD was not included in the Civil Rights Act of 1964. In light of the situation revealed by his report, Wirtz recommended the instatement of a national policy against age discrimination in the United States (Lipnic).

In response to the Wirtz Report, President Johnson proposed a bill to combat AD. Senators Jacob Javits and Ralph Yarborough submitted amendments to the president’s proposal and created the Age Discrimination in Employment Act (ADEA). The bill passed Congress on December 15, 1967 and subsequently took effect on June 12, 1968. ADEA requires employers to use “individual ability” as the sole characteristic considered in hiring and promotion decisions, as opposed to an applicant’s age or other demographic traits. The law allows Americans who believe they are victims of AD to sue an employer in court. ADEA was originally enforced by the U.S. Department of Labor at the time of the act’s implementation in 1968, but enforcement was transferred to the Equal Employment Opportunity Commission (EEOC) by the Carter administration in a 1979 cost-saving measure. The original 1967 ADEA law only protected private sector employees from AD, but the law was broadened in the 1970s to also protect federal, state, and local government staff members. Early ADEA cases litigated in the 1970s involved objections to the mandatory retirement ages for police and firefighters, and denial of employee benefits based on worker’s ages (Lipnic). The American workforce has undergone notable changes since the mid-twentieth century which have affected modern AD claims.

Lipnic emphasizes how AD remains a constant issue for American workers despite cyclical economic trends that affect the job market. Simply put, age discrimination does not discriminate who it affects. People of all races, colors, religions, ethnicities, and income levels are at risk to experience AD when they reach their 50s and beyond. Americans residing in rural and urban regions, working blue and white-collar jobs, and earning all levels of income are susceptible to this far-reaching problem. As AD persists in creating obstacles for employees approaching their retirement, the demographics of the American workforce are changing. Today’s workers are more ethnically diverse and perform a greater variety of jobs in a growing number of industries, compared to 1967 when ADEA was passed. Most jobs require less physical activity today than 50 years ago, due to the advent and modern universality of computers. Currently the American labor force is 75% white, compared to 90% white in 1971. Women are also performing a greater number of jobs than in previous decades and are at a growing risk for AD. It is estimated that women aged 55-plus will comprise 25% of the women’s workforce by 2024 (Lipnic). An understanding of the changing nature of the American workforce is necessary when examining modern AD litigation.

One local example of the laborious court process faced by AD plaintiffs is an ongoing case against Shaw’s Supermarkets in Maine. In 2012, Shaw’s employee Lorraine Scamman was terminated along with 70 other full-time employees at the supermarket’s Maine stores (Margesson). At the time Scamman was let go she was 52-years-old and had worked for the grocery chain’s Saco location for 32 years (Betts). Shaw’s stated that the layoffs were the result of cost-saving measures. Scamman and four other former Shaw’s employees submitted a complaint to the Maine Human Rights Commission, alleging the grocery store was committing AD. The basis of Scamman’s complaint was that Shaw’s unjustly targeted full-time associates with the layoffs when other cost reduction measures could have been taken instead. Shaw’s could have asked full-time workers to reduce their hours to part-time or terminated a combination of full-time and part-time employees, instead of exclusively full-timers. Scamman’s lawsuit was validated by the Maine Human Rights Commission because the older, full-time associates that Shaw’s laid off are protected by AD provisions in Maine state law (Murphy). After filing her suit, Scamman began awaiting the prolonged process of litigation.

In response to Scamman’s lawsuit, Shaw’s stated that it had used “reasonable factors other than age” (Murphy) in deciding to lay off 70 full-time employees in Maine, because the terminations were based on business necessities. The case was heard in United States District Court which deferred to the Maine Supreme Judicial Court for an interpretation of state law to determine if Shaw’s actions were based on “business necessities”. In a small victory for Scamman, Maine’s highest court ruled there was not sufficient evidence Shaw’s terminated the 70 Maine associates based solely on the needs of its business. The case was returned to federal court where arguments will continue on whether Shaw’s could have used an alternative cost-saving method, as opposed to the 70 layoffs. Lorraine Scamman lost her job at Shaw’s in 2012, and in late 2018 her AD lawsuit has not been resolved (Murphy). Scamman’s case presents a vivid example of the need for expedited solutions to age discrimination claims under the American legal system. Early in 2017, The Portland Press Herald and the AARP ran stories on how the Maine Supreme Court’s decision to let the case continue in federal court was a major victory for Scamman. It seems incongruous to label the ongoing litigation as a win for the plaintiff. Scamman has waited six years and counting for her case to be resolved since her termination from Shaw’s, and she has received no compensation to date.

Mainstream news outlets portray AD as an ongoing problem in the United States, which is an accurate lens to view the modern state of AD. Despite coverage of AD cases in the news, there is a major disconnect regarding the drawn-out process that AD victims face as they seek justice. Farrell points out how “most older workers don’t bother to formally protest age discrimination, figuring it isn’t worth the time or expense to litigate”. This statement communicates the problem Lorraine Scamman and other AD litigants face. After a worker in his or her 50s or older makes the tough decision to take an employer to court, the road to justice is a long haul. Annual age discrimination complaints filed with the EEOC have risen in the twenty first century, peaking at 24,502 in 2008. The most recent data tallied 20,857 AD claims in 2016 (Farrell). One proposed method to reduce AD involves periodic hiring audits conducted by the EEOC. Anonymous job candidates of different ages would apply for similar positions with one company, to gauge if AD was taking place as applicants were chosen. The EEOC would impose a sharp penalty on the test firm if discrimination was found to be taking place (Farrell). Although this audit method would require spending taxpayer dollars to execute, it would proactively challenge AD and may help reduce the expensive, time-consuming litigation that results when AD is addressed retroactively.

As is the case with most large-scale national issues, there are some pundits who deny that age discrimination exists. Atlanta Federal Reserve Bank Economic Policy Specialist Ellyn Terry argues that AD does not occur in a theoretical context. Terry contends that the free market motivates employers to consistently seek out the best candidate at the best price. She reasons that companies will not consider age in hiring decisions unless “it's related to something else correlated with worker productivity and they have nothing else to go on” (Weisberg and Freeman). Terry’s stance is flawed because in order to find the best price among multiple qualified applicants, employers must consider age in addition to aspects such as skill level, education, experience, and professionalism. Older applicants typically earn more than younger candidates from the outset of a new job because of their experience. Therefore, it is difficult for companies to consider who the best-priced applicant is without simultaneously taking age into account. According to recent data from the EEOC, six out of ten workers aged 55 plus say they have witnessed or experienced age discrimination (Lipnic). This further undermines Terry’s assertion that AD is nonexistent in the free market and draws her status as an expert into question.

Americans who lose their jobs in their 50s and 60s have a formidable hill to climb when attempting to reenter the workforce. Data shows that it takes longer for workers in the late stages of their careers to be rehired after losing a job. When older employees are finally able to return to work, they often face substantial pay cuts compared to their earnings in previous, multi-decade careers. According to data published by the Association of Mature American Citizens, the top three jobs sought by applicants aged 55 plus are customer service representatives, cashiers, and school bus or Uber drivers (15 Most-Wanted Retirement Jobs). Despite the prevalence of government protections for older employees, it is legal for businesses to require job applicants to list birth dates and school graduation dates on applications. Computerized applications often require candidates to provide age-identifying information in fields that cannot be bypassed (Lipnic). This reality means employers may discard a resume after one glance if the applicant is thought to be too old.

Seniors and older workers who lose their jobs and cannot find alternative employment tend to experience a myriad of negative health effects, as a result of their forced termination or retirement. Depression, declining mental and physical abilities, and feeling useless are some of these maladies. Lipnic also accentuates how “with advancing age, older individuals are exposed to more negative ageist stereotypes that make them feel older than their chronological age.” There is an unfounded and commonly accepted typecast that on-the-job ability declines with increasing age. The truth lies in the converse of this statement. Older workers are often more capable and productive than their younger counterparts because they bring years of invaluable life and work experience to their jobs.

Americans of all ages will benefit from media coverage that not only conveys the ongoing problem of discrimination against employees in their 50s and beyond, but also covers the issues that AD victims face when seeking recompense for mistreatment by employers. Most news outlets and members of the public agree that AD continues to occur too often in the second decade of the twenty-first century. Despite this common ground, there is widespread misunderstanding as to the plight of AD victims in litigating their cases against large firms with teams of elite lawyers in their corporate arsenal. According to court precedent, AD cases are more difficult for plaintiffs to prove than cases on other forms of discrimination such as race or religion (Lipnic). Claimants of AD face an arduous road in federal court as they seek compensation. Due to the difficulties of winning a federal ADEA lawsuit, some workers will opt to sue at the state level if their state of residence has laws banning age discrimination. Twenty-one states currently have statutes providing punitive damages for successful plaintiffs of AD lawsuits (Lipnic). In order to accelerate the resolution of AD cases, it may be necessary to create a path to justice for AD victims that does not rely on the court system. Such a feat may prove difficult under the American system of government where the courts are the vehicle for mediation of disputes.

Tangible progress in the battle against age discrimination may be achieved in two important steps. First, media coverage must highlight the formidable process that AD litigants face when seeking justice for definitive exploitation from employers. Second, and most importantly, the media must take part in the creation of a culture that values the skills and talents of the older sector of the workforce. This may be achieved through workplace diversity programs that include the topic of age in addition to discussions about race and ethnicity. Stereotypes about age must be viewed as equally deplorable as those concerning color, religion, gender, sexual orientation, and nationality. University of California, Irvine Economist David Neumark points out how “people who would never make a racist or sexist joke will make an ageist joke without thinking about it. The social acceptability of that is remarkable” (Farrell). Age discrimination may be halted in the twenty-first century with a cultural movement to label this problem as equally heinous as any form of bigotry. Popular media could help initiate this change by devoting less time to sensational, divisive stories. If Americans are given only the facts in news coverage of age discrimination or any other issue, and subsequently permitted to draw their own conclusions without undue influence from the political leanings of the mainstream media, then the resulting cultural impact will be positive progress.

Works Cited

"15 Most-Wanted Retirement Jobs." Amac.us, Association of Mature American Citizens, 7

July 2017, amac.us/15-wanted-retirement-jobs/. Accessed 28 Nov. 2018.

"Age Discrimination." Eeoc.gov, U.S. Equal Employment Opportunity Commission,

www.eeoc.gov/laws/types/age.cfm. Accessed 28 Nov. 2018

Betts, Stephen. "Shaw's seeks to move age discrimination lawsuit to federal court." Bangor

Daily News, 28 July 2015, bangordailynews.com/2015/07/28/news/state/shaws-seeks-to-

move-age-discrimination-lawsuit-to-federal-court/. Accessed 11 Dec. 2018.

Collins, Kent S. "Just Don't Call 'em 'Old Folks.'" Journalism Across Cultures, by Fritz Cropp

et al., Iowa State Press, 2003, pp. 113-30.

Cooley, Aaron. "War on Poverty." Encyclopedia Britannica, www.britannica.com/topic/War-

on-Poverty. Accessed 2 Dec. 2018.

Farrell, Chris. "The Age Discrimination Law At 50: A Mixed Bag." Forbes, 14 Feb. 2017,

www.forbes.com/sites/nextavenue/2017/02/14/the-age-discrimination-law-at-50-a-

mixed-bag/#320843e61cf1. Accessed 28 Nov. 2018.

Lipnic, Victoria A. The State of Age Discrimination and Older Workers in the U.S. 50 Years

After the Age Discrimination in Employment Act (ADEA). U.S. Equal Employment

Opportunity Commission, June 2018, www.eeoc.gov/eeoc/history/adea50th/report.cfm.

Accessed 28 Nov. 2018.

Margesson, Jane. "Maine Age Discrimination Case Victory for Older Workers." AARP.org, 7

Mar. 2017, states.aarp.org/maine-age-discrimination-case-victory-older-workers/.

Accessed 3 Dec. 2018.

Murphy, Edward D. "Age discrimination suit against Shaw’s allowed to advance." Portland

Press Herald, 8 Mar. 2017, www.pressherald.com/2017/03/08/age-discrimination-suit-

against-shaws-allowed-to-advance/. Accessed 28 Nov. 2018.

Weisberg, Lori, and Mike Freeman. "As workers resist retiring, employers resist them."

Portland Press Herald, 5 Sept. 2018. Digital Maine Library, search-proquest-com.ursus-

proxy-11.ursus.maine.edu/docview/2099276840/fulltext/8893982355AE4F17PQ/

4?accountid=17222. Accessed 28 Nov. 2018.