We hear so much about race, gender and sexual orientation discrimination on the job. And this is with good reason. America, unfortunately, has a long and torrid history of racial and gender discrimination, and the last 20 years have added sexual orientation discrimination to the list, especially given stories of gays being banished from the military.
African-Americans, in particular, were long barred from certain jobs, and even when they were fully integrated into the workforce during the 1980s, they faced the very low glass ceiling, as do women. Both African-Americans (and minorities in general) and women face challenges on the job in getting promotions and raises that white male Americans do not even dream of.
Today, the newest frontier in discrimination on the job is age discrimination. In reality, though, age discrimination has been around forever; it is only now getting some attention and some much needed press.
One of the reasons behind the recent notice that age discrimination in the workplace is getting is the emergence of the high tech and information technology sectors. When an older employee is let go, speculation arises as to age discrimination; but it may simply be a case of her inability to catch up to today's technology. Or, even more gray-area, it may be a case of her salary going up every year, and the organization's discovery that a 22-year-old straight out of college is willing to do the same work with the same alacrity and quality for one-third the salary expenditure.
Regardless of the rationales or reasons, though, it is important to study the causes and effects of age discrimination on organizations, and also the legislative efforts in place to minimize the damage.
Laws illegalizing age discrimination in the United States hark back to the tumultuous decade of the 1960s, when along with the Equal Pay Act and the Civil Rights Act barring discrimination against women and minorities generally, the U.S. Congress passed the 1967 Age Discrimination in Employment Act. Many crucial issues regarding the rationale for or effectiveness of age discrimination legislation have been addressed, and continue to be studied, by researchers in both economics and law, while many questions remain. (Neumark, 4) These queries undoubtedly to become increasingly pressing as rapidly aging workforces in the United States and its fellow industrialized countries threaten to greatly hike up the social costs of any impediments to older and geriatric workers' employment.
It is highly valuable to view the United States' policies with those of the European Union. The United Kingdom and Australia, for instance, have highly codified levels of age discrimination legislation.
In light of many of the same demographic conflicts that face the United States, particularly shrinking numbers of younger workers, the European Union (EU) has decided to fight age discrimination in the workplace. On November 27, 2000, the European Union Council of Ministers adopted the European Directive on Equal Treatment which requires all fifteen EU member states to introduce legislation prohibiting discrimination in employment on the grounds of age, sexual orientation, religion and belief, and disability by 2006.
As the United States has had federal legislation prohibiting age discrimination in employment since 1967, the EU has turned to us for our expertise and experience. Perhaps the most significant point we have tried to convey to the Europeans is that a quality law is not a panacea for ridding the workforce of age discrimination. "Despite the fact that the United States' Age Discrimination in Employment Act (ADEA) has been in place for over 35 years, age discrimination in employment remains a pervasive force. In fact, charges of age discrimination filed with the Equal Employment Opportunity Commission (EEOC) have increased 41% since 1999." (McCann, 1) What, then, is the correct explanation? The query's answer may exist partly in the fact that as a society, Americans simply do not view age discrimination in the same category as they do race and gender discrimination, for instance, and as mentioned above. Age discrimination is not treated as wrong or unacceptable and is seen actually more as an economics issue than as a civil rights conflict. Indeed, in the United States when it comes to age discrimination, we "talk the talk" but don't "walk the walk." (McCann, 1)
With that on the agenda, how does the European way of dealing with age discrimination stack up against the United States' set of laws and protection? "With the exception that the European directive states that both direct and indirect age discrimination (the equivalent of our disparate treatment and disparate impact) is prohibited, the directive is not nearly as forceful as our ADEA in condemning age discrimination. Most significantly, the directive permits the Member States to continue to enforce mandatory retirement whereas in the United States, mandatory retirement has been abolished except for a few very narrow exceptions." (McCann, 1)
In addition, the European Union's law contains a provision that reads: "Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if... they are objectively and reasonably justified by a legitimate aim... And if the means of achieving that aim are appropriate and necessary." (EU Statutes) This directive can be interpreted to provide the Member States with almost unstoppable discretion to carve out large exceptions to the prohibition on age discrimination. So, in truth, the directive seems a lot like Lincoln's Emancipation Proclamation, which purported to free the slaves over whom he had no control.
The procedure of implementation of the European Union's directive is now occurring in all the Member States. As of November 2001, very little calculable progress had been made. At a conference on the implementation on the anti-discrimination directives into national law in Copenhagen, Denmark, member states were requested to report on the status of their individual legislative initiatives. At that time, only the Netherlands had volunteered a bill to comply with the European Union's directive. Although the nation of France reported that it had taken significant action by passing an amendment to an existing law to append age as a prohibited ground for rendering employment decisions. In addition, a bill was recently introduced in the United Kingdom's House of Commons that calls France's move and raises it. There is a significant chance that the European Union's other Member States will start to undergo the necessary procedures to ensure timely compliance with the directive's deadline that legislation be in place by 2006.
The loopholes in the European Union's directive combined with the members states' significant delays in ensuring the procedures to enact legislation imply that the EU is a long way from either "talking the talk" or "walking the walk" when it comes to eliminating age discrimination. "If the United States and Europe hope to address the demographic challenges facing their labor forces, both must take more effective action to allow those older workers who want to continue to work to do so." (McCann, 2)
As for actual age discrimination suits and their effect on businesses, there is one piece of airtight advice: "The best shield an employer can devise against liability in an ADEA case, as in any other type of discrimination or employment case, is to have neutral policies based on considerations of merit or seniority, consistently applied. Sound business reasons and essential fairness to the individuals involved in many cases will avoid litigation or at least provide a viable defense. While protective laws such as the ADEA certainly create hazards for the employers, the courts have repeatedly said that these laws are not vehicles to impede sound management or to allow courts and juries to second guess business decisions." (Spero, 13)
For California, for instance, generally, discriminating on the basis of age in the workplace is illegal under both the Federal Age Discrimination in Employment Act (ADEA), and the California Fair Employment and Housing Act (FEHA).
Under both laws, there are some special limitations on who can sue. This comes down to who is covered under each statute.
People under forty years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore "too young," that is not illegal. But if it because he or she is forty and "too old," that is illegal. (Greenberg, 1)
Age discrimination has some special circumstances that make it unique from other types of employment discrimination. A few of these are discussed below.
First, there are golden handshakes. Sometimes when companies down-size, they lay people off by offering "golden handshakes," which are special packages to employees who agree to take early retirement. This is extremely popular in this age of streamlining businesses and "cutting the fat." This is not age discrimination, legally, according to legal scholars. (ibid) However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.