Workplace Discrimination- Age Discrimination
Differences of treatment between different individuals or groups on the grounds of age are often based on generalized assumptions or casual stereotypes. When individuals are subject to discrimination as a result of these demeaning stereotypes, their fundamental right to respect for their human dignity is violated, as they are denied equality of treatment and respect. Such discrimination also prevents disadvantaged age groups from participating fully in the labour market. (Margaret Stockdale 2007)
Matthew says that, “it denies older people the opportunity to live full and active lives” Instead, they ask that older people are recognised as equally valued and equally supported members of society.
A key step in any effective age equality strategy is to introduce legislation that prohibits unjustified forms of age discrimination in employment and provides effective remedies for victims of such discrimination. The Framework Equality Directive represents a major acknowledgement of the problem of age discrimination. It said that “both younger and older workers have rights to age equality”. It also is not solely concerned with ensuring formal equality, but also with combating age-based disadvantage and upholding basic rights. Within the parameters of this general approach, the Directive applies a similar approach to age discrimination as it does to the other forms of discrimination, prohibiting direct and indirect indiscrimination, harassment and associated wrongs linked to a person’s age.
However, particular issues arise in respect of age discrimination that distinguishes age from the other grounds. There are no fixed characteristics that define particular age groups, unlike the case in general with the other equality grounds, nor do individuals remain fixed within particular groups, nor do age-based assumptions by others about individuals of particular ages remain static. Also, age distinctions based upon unfair assumptions and stereotypes are undesirable: but other distinctions upon the grounds of age are rooted in rational considerations that are not incompatible with the recognition of individual dignity, serve valuable social and economic objectives, and often are designed to benefit or protect particular age groups.
Old age is considered to be 65-75. Old age is considered to be 75-85, and the fastest growing segment of this population is the oldest-old, from 85-95, but overall, 800,000 people in America turn 65 every month. The official American life expectancy is 66. Although investments can be withdrawn without any penalty at age 59 and a half, and social security as early as age 62, most people work in America up to age 70, some even further. Medical problems become acute and potentially life-threatening, as the body shrinks and bones become brittle (Raymond F. Gregory, 21). Nutrition is a concern among the elderly because the sense of taste and smell are the first to go. There's even elderly diseases, like Alzheimer's, that afflicts one in ten people. The American Association of Retired Persons (AARP) has done a marvelous job of fighting stereotypes about these age groups. 65% of the old aged lives with relatives, 30% live alone, and 5% live in nursing homes. Some low-income old people live in specially planned housing projects funded by government agencies or charitable organizations, but this is a very small number. The nursing home population (90%) is predominantly white. (Barbara Bender Dreher 71)
Discrimination against older people in the workplace is pervasive, according to research by AARP. It's usually subtle and more difficult to prove than other forms of discrimination. After all, most people think the normal process in the workplace is for younger people to replace older ones. As Tom Osborne, senior attorney at AARP explains: "You have to step back and ask: 'Is this the result of normal attrition or is this age discrimination?' “(Jacqueline DeLaat 11)
Getting back into the job market after official retirement or a layoff is problematic. Job seekers have to cover up their age and masquerade as young. "We would advise people who are of a certain age not to put your age or graduation dates on your resume," counsels Osborne.
In this upside-down culture, what was once an asset becomes a liability. Until about age 40 or 50, experience is the steppingstone to a promotion. After that, it's viewed as excess baggage. Stereotypes kick in. In one AARP survey of public perceptions, nearly 40 percent of respondents felt that older workers aren't as effective as younger workers. Almost half believed that the majority of older people cannot adapt to change. (Barbara Bender Dreher, 73)
One of the more damaging aspects of age prejudice is that older men and women internalize the message that they don't measure up to those who are younger. Of course, there are differences between younger and older workers. Older people take longer to learn something new. At the same time, they are more stable and have a broader knowledge base. But as the worm of prejudice works its way through the psyche, older people may equate differences with inferiorities.
The culture, moreover, doesn't take kindly to angry uppity old folks. Last month an Oklahoma judge sued his colleagues for age discrimination. Marian P. Opala, 83, a justice of the Oklahoma Supreme Court, wanted to be chief justice. By custom, the job rotates among the justices. But when it came his turn, he says, his colleagues elected someone else. In his suit, he says that he "enjoys good health and sound mental acuity." Being passed over, he alleges, amounts to age discrimination in the workplace. Legal scholars found the judge's suit unseemly, undignified, and even irrational, according to news reports. In other states, judges are required to step down at a certain age. What's his beef? One article began with the condescending statement that Justice Opala is "83 years old, but he is not without ambition." (David A. Robinson 34)
By now, every employer knows about the dangers of employment discrimination lawsuits. Employee lawsuits against employers and former employers are increasing yearly. Since Clarence Thomas and Anita Hill, and most recently with President Clinton and Paula Jones, sexual harassment cases have been getting a lot of attention in the press. One type of employee lawsuit that is often overlooked is the age discrimination case. (Margaret Stockdale 2007)
Age discrimination cases can be a particular risk to employers, both because of the large amount of a potential verdict, and because of the frequency with which age discrimination occurs. This article will examine some of the reasons that age discrimination cases are becoming more prevalent, what rights older workers do have, and what employers can do to avoid discriminating against older workers and exposing themselves to suits.
Older workers are more likely to have been with a company for a longer period of time. They are therefore more likely to be in a senior position, or at the very least have had many years to receive raises. Therefore, they are more likely to have higher salaries than their younger counterparts. This increases the damages for past and future lost wages and benefits.
Damages for lost wages and benefits are also increased by the fact that it is harder for older workers to find new employment. When an employee brings a wrongful termination case, he or she must "mitigate" damages. That is, he or she must make reasonable efforts to replace the job that was lost. It is more difficult for a high-level, highly paid employee to replace a lost job with a similar job. This is more likely to be the situation with an older worker. But even if the older worker was in a low-level position, it is still more difficult to mitigate damages (Matthew Bodie 118). First, as stated above, that employee, because of the length of employment, probably makes more than younger counterparts in the same position. But if the older worker is applying for a new low-level position, he or she will have to start over at the bottom of the pay scale. This has two effects. First, the older worker is required to try to find "comparable" employment. The employee doesn't have to take just any job. There is no formula for "comparable," and no percentage of former pay that the employee is required to accept. However, a bill recently introduced in the California Legislature would require workers who are claiming wrongful termination to accept positions which earn 70% or more of their past salaries.
Second, older workers have more difficulty getting a job. Older workers suffer from the common discrimination that goes on all the time, whether on the basis of age, race, or something else: people often hire people who are "like" themselves. Younger workers just think they will be more comfortable working with persons like themselves. But older workers also face a special set of problems. Even aside from flat-out age discrimination, there are common and more-subtle reasons for employers' reluctance to hire older workers. For instance, employers realize that the older worker cannot have the long-term career with the company that a younger worker can. Arguably, this is age discrimination. But the employer might not think so, insofar as the decision not to hire the older workers isn't motivated by a particular animus against older people as a whole. There might be assumptions about the older workers' attendance because of presumed health problems. Again, this isn't legal, but people often think these assumptions are fair and sensible to make. (David A. Robinson 60)
Older workers often face special problems in "new" industries, such as high-tech. Youth-dominated companies might describe or perceive themselves as looking for "new" ideas and "innovative" employees. There is no reason this should exclude older workers; unfortunately, it often does.
One subject that hasn't been discussed is the value of older workers. They have experience, wisdom, and a breadth of knowledge that younger workers very rarely have. They may also be the institutional memory of the company. They know what has worked in the past and what hasn't.
As attorneys who specialize in employment law, must have been involved in many age discrimination cases. It has not been their experience that there is any reason to believe that older workers have old ideas, or are under or unwilling to accept new ones. In fact, it is often the older worker who is intrigued and energized by an idea which is new to him, even though a younger worker might find it old hat. One anecdotal example: we have a web site on the Internet. A plurality of our hits is made by people searching for information on age discrimination. These people obviously have computers, and presumably are themselves older people. But computers are considered "new" and for the "young." In our experience, that's not true. A common assumption that computers are for the young, here seems incorrect. Obviously, you can teach”old dog” new tricks.
The age discrimination laws, like all the employment discrimination laws, exist for a reason: employers shouldn't make assumptions based on age, race, gender, etc. Cliches and stereotypes aren't necessarily accurate, and shouldn't form the basis for decisions that affect others. The best way for companies to protect against age discrimination suits is to have their employees take to heart the rationales behind the age discrimination laws. If the company and its employees value older workers, then they aren't going to discriminate in the first place, and they are far less likely to be hit with a lawsuit.
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