Last updated Feb. 22, 2018.
Recently, Bloomberg News published The New Face of American Unemployment. The article profiles five individuals representative of Americans struggling to find work in a still-challenging economy. Among those profiled is Mike Schlager, a 55-year-old Information Systems manager who lost his job after a change in management and, after one year, is still looking for alternative employment.
“The idea that age discrimination is a barrier to hiring is supported by economic research,” the article states, “and it could be increasingly important as more and more Americans cross the older-than-55 threshold.”
After representing employees for nearly two decades, I can say definitively that — contrary to the article’s title — the problem of older workers losing their jobs is hardly “new.” Rather, it’s a longstanding trend that only worsened during the economic downturn of 2009 and persists today.
So, what does age discrimination in the workplace look like? As the article notes, employers carefully avoid treading into obvious discriminatory territory. Most companies have well-oiled HR operations that train management not to inquire about age during hiring, or ask current workers when they’re getting ready to retire. Instead, employers do their best to keep age discrimination subtle and unspoken.
I’ve pursued many age discrimination claims over the course of my career, and in my experience, age bias often follows a similar pattern from case to case.
What is age bias?
First, although state and federal law prohibits discrimination against workers ages 40 and older, most of my cases involve employees approaching retirement age, ages 55 and up. Exceptions can occur by industry. For example, sales and IT are notoriously biased toward younger (and in sales, preferably unmarried and childless) workers.
Age bias routinely occurs after a change in management. Often a company is acquired, resulting in a new management team eager to curry favor with higher-ups and shareholders by cutting costs. The easiest way to do so is through the low-hanging fruit of firing workers 55 and older, regardless of the experience and judgment they bring to the table.
Examples of Age Discrimination
Because they are well-versed in the anti-discrimination laws, employers know that the only way to terminate a worker because of her age is to invent a reason — and so they do. The new manager in his 30s starts subjecting his 58-year-old subordinate to written reprimands for negligible paperwork errors or small details that were never an issue with the prior manager. The 60-year-old nurse gets put on a Performance Improvement Plan for practices that, for years, were commonplace and accepted on her hospital floor. Mountains are made of molehills.
While most employers craft bogus warnings or PIPS to lay the groundwork for termination, I have seen older workers get fired for just a single minor infraction.
Protecting Yourself from Age Discrimination
Given that age discrimination is widespread and pernicious, what can you do, as an older worker, to protect yourself? There are no easy answers and no foolproof “silver bullets.” However, I advise you to:
Keep performing to the very best of your ability. Do your utmost not to give your boss a reason to let you go. This might entail taking classes or undergoing training on new systems. Remain receptive to learning and to adopting the practices of your management team, even if these are different from the “old way” of doing things.
Make sure your achievements are documented and, to the extent possible, known to management. Did your bank client send you a glowing email regarding your efficiency and accuracy in preparing tax returns? Then forward a copy of the email to your manager. Did the parents of one of your students send you a heartfelt letter of thanks for assisting the student at lunchtime/after school? Did the spouse of your patient give you a card thanking you for your outstanding level of care? Then be sure to keep these documents and ask management to allow you to submit them to your personnel file.
When other older workers are terminated and/or begin to leave, communicate, and make the effort to stay in touch. To look less suspicious, new management often targets older workers one at a time, either firing them outright or pressuring them to get out. If you know any such older workers, keep your lines of communication open with them by exchanging emails or phone numbers. In my practice, I have found that other terminated workers are often amenable to giving sworn statements in support of my clients’ age discrimination claims. Furthermore, evidence that you are one of a group of older workers subjected to age bias undeniably bolsters your claim. There is strength in numbers.
Keep track of the age of replacements. In the same vein, when other older workers are terminated and/or begin to leave, notice whether they are replaced with workers in their 20s or 30s.
If you believe you are being targeted, call an attorney. Once management begins subjecting you to undue scrutiny, or puts you on what you believe to be an unwarranted PIP, it’s prudent to call an attorney to discuss your situation and explore your alternatives going forward.
Contact a New Jersey Age Discrimination Lawyer Today
An employment discrimination specialist can appraise the strength of your claim and help you weigh options such as trying to negotiate a settlement or filing a formal complaint in court.
If you have questions or concerns regarding age discrimination in the workplace, call our offices today for a free consultation.