Age discrimination in employment and social contexts

Age Discrimination

The type of discrimination is new. In fact age was regarded as a type of virtue because the aged employee often was the expert who could do things better than others. The global scenario, changes in production technology and the cost cutting needs of companies to manage keeping low costs to be competitive ushered in the discrimination against aged employees. Employees today are a heterogeneous group comprising of people from many age groups and ethnicities. There are different types of discrimination that is practiced at the workplace. Examining some of them and their causes will clarify the issues regarding age-based discrimination. There are many forms of discrimination that could be because of disability. The Americans with Disabilities Act of 1990 had to be passed on account of this. Similarly racial discrimination is rampant. When Gunnar Myrdal called it an "American Dilemma" the reference was to the oppression of African-Americans in the workplace. This still continues in spite of laws and social reactions.

Age discrimination is the most prevalent type of discrimination witnessed at the workplace. This type of discrimination spans all population of people regardless of sex, race and place of origin. The other forms of discrimination pertain to one section of society, while this discrimination based on age is more widespread and complicated. The EEOC which is in change of administering the ADEA regulation also admits the petitions of age discrimination. The member who files the dispute must prove that he is from a protected age group. The petitioner was also qualified to do the job, and was discharged under circumstance that could lead to an inference with regard to age discrimination. If the charges are proved, the employer becomes liable. The most important factor relates to the complainant's age which is regarded to be the only consideration for the petition. The annals of the courts are replete with cases against employers who in order to cut costs replaced older higher salaried employees with raw hands. Companies change employees or fire them for many reasons, and the allegation on account of age being a factor is a thin veil which will have to be looked up with care. In the ADEA rulings it is not an issue if the other employees are less aged or the age of the complainant is lesser.

To begin with a company hires employees based on skills like experience and education, but theorists argue that each employee also brings his skill, and also a "group or social identity and a personal identity. Often our social identities motivate how others will respond to us both inside and outside of the workplace." Identities can be thus got from the gender, race, place of birth and other factors that need not necessarily involve skills. These settings by themselves offer venues for discrimination. Thus group mentality by itself is a trigger for discrimination at the work place. Thus socially triggered oppression and discrimination with regard to a trait, a disability or the sex of the employee by itself is one aspect.

The second aspect is the dynamic nature of the process of production and reorganization through automation. Products and processes are being automated more and more, and the worker is less in demand. This leads to anomalies in employment, wage structure and the system in place to protect the worker is now powerless to accommodate the changes. These changes have to be seen in the background while considering the efficiency of the commission in today's context. The innovations occur day by day and come "both from technological innovation (labor-saving machines, automation) and from tight technical control over work processes. In mass manufacturing, managers, relying on scientific management and industrial engineering, improve the fortunes of their companies and of the economy as a whole, by breaking work down into narrow, repetitive tasks that people with no special skills can perform with the aid of special machines." This changes the definition sand meanings of the context of the acts which the commission is the authority to enforce.

Lynne Bennington is of the opinion that "With the imminent aging of the workforce, and the increasing numbers of people with career responsibilities who need or wish to work, the under- standing, detection and subsequent removal of discrimination in employment is of critical importance to an egalitarian society." The question is if the anti-aging discrimination legislation will succeed or be come a failure, not only in the U.S. But in other nations where it has been introduced. A variety of methods have been used to try to establish the existence of discrimination.

Causes of Age Discrimination

Many things have been blamed on globalization but perhaps this is more antedated. The basic need for discrimination with regard to age lies in the increasing benefits that accrue to employees as their seniority increases. Companies find it easier to employ younger persons at lesser wages than settle for seniors. That could be one reason. The other relates to the changing technology and the speed of doing business with more and more automation. Younger generations adapt to technology like computers faster than the seniors. In times of depression and glut in the market the companies need to down size which results in axing off those jobs that are basically not important. The chance of a senior occupying such a post has high possibility. "The term downsizing refers to the reduction of the workforce through either voluntary or involuntary means or a combination of both. Corporate downsizing of privately and publicly owned firms has been a common occurrence in recent years. Restructuring has become a popular method for streamlining organizations. More than half of the Fortune 500 corporations have slashed their corporate staffs. Since 1979, over 1.5 mil- lion managerial and staff positions have been eliminated."

From the 1980s when the expansion in business took place, downsizing has been a frequent phenomenon. One example is that the "Fortune 500 industrial companies alone lost more than 3.2 million jobs in the 1980s." This has also spread later to banking, service sectors and other business units. Downsizing has been one of the major causes of age-based discrimination. Journalists and the media have brought to light some of the practices that go in corporate environments including discrimination. This along with individual petitions to courts and the rulings from various courts resulted in a great batch of regulations and protective laws mostly against employee discrimination. The age related discrimination also was a subject of this issue and hence the law. Age discrimination thus is now illegal and there is a legal remedy for the affected.

Effects of Age Discrimination

The greatest evil that can happen if age discrimination is allowed to go on will be increase in the poverty levels in general and the loss of the quality of the life for the affected and his or her family. Individuals may suffer trauma, loss of prestige and other psychological stress. The loss of income will also deny them the fundamental facilities and the limited income of the rest of the family will be share with them thus making them a burden. One step in this direction to help ageing America was the 'Personal Responsibility and Work Opportunity Reconciliation Act - PRWORA' of the year 1996 that helped exploring self-employment. However, where a person was fit to work and willing, he or she must not be denied the opportunity. By allowing seniors to contribute the employer actually allows for greater stability in the economy and society.

As far back as in 1992 there were over four million elderly persons in the U.S. who were officially declared poor. At that time the poverty was calculated to be over thirteen percent. The poverty of people as head count tells us the individual numbers, but do not tell anything with regard to the feature of the poverty. For the measure of poverty among the elderly, a different set of variables have to be considered. The importance of their living arrangements ought to be considered. If an individual is unemployed at the age of fifty then the rest of the family need to spread the resources that it gets to support persons who otherwise would have earned for themselves.

In case where the family has other unlearning members like children the problem becomes worse. The passing of family resources to the benefit of the individual is accompanied by two problems. One is that the share of the resources within the family with the elderly requiring more shares of the resources, and the second is the type of the families. Larger families have resources to share operating on an economy of scale, but the smaller families have the impact of the scarcity of resources with regard to distribution among members where there are elderly persons with more requirements present. This coupled with many other social costs create a burden on the state in the long run. Thus the artificially created poverty will in turn affect the whole nation. It will also affect the very companies that practice such discrimination in the long run. It was after a lot of concern expressed in this matter and after a long legal and judicial consideration that the legislature passed the act.

Legal Enforcement

The U.S. Equal Employment Opportunity Commission is the authority that enforces the legislation on age discrimination namely the 'Age Discrimination in Employment Act of 1967 - ADEA'. This act is designed to protect individuals who are about forty or above years of age the ADEA's stipulations apply to those in employment and those applying for one. Prior to the law, a number of rulings by courts created the backdrop for passing of the statute. It is therefore important t consider in depth the working of this commission.

The U.S. Equal Employment Opportunity Commission -- EEOC

The U.S. Equal Employment Opportunity Commission -- EEOC was instituted as an 'independent federal agency' in 1964 with the main responsibility of enforcing the Civil Rights Act of 1964. The power of the commission is in enforcing the provisions of the law, of which it is the executor. The commission enforces all laws that pertain to job discrimination and workplace and employment rights. The laws that are enforced by the commission include the "Age Discrimination in Employment Act of 1967 - ADEA', 'Equal Pay Act of 1963 -EPA', 'Disabilities Act of 1990 - ADA', 'Rehabilitation Act of 1973', and the 'Title VII of the Civil Rights Act of 1964'."

The EEOC enforces all these laws and in addition coordinates the federal equal employment regulations in force. The laws enforced by the commission have a wide range of impact on the workforce, workplace procedures and employment. Following the guidelines of the commission is mandatory. The laws protect workers from discrimination and workplace harassments. The power of the commission is vast and includes "private employers, state and local governments, and education institutions that employ 15 or more individuals."

Essentials of the Law

The intention of the legislature was clear when the declaration of the Congress showed that in view of rising affluence old workers find themselves jobless or retain employment, secondly the arbitrary age limits that are set for employment regardless of potential for performance always operate to the determents of older individuals. Further the Congress states: "the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;" and the law is being passed to prohibit discrimination based on age in places of employment.

The basic needs that are outlined in bringing an action for discrimination under the act relates to people above the age of forty. That is the first requisite. The person must have been qualified for the post in which he or she is employed, or has filed an application to be selected. Thus age cannot be a criterion for the candidate except with a few exceptions where age can be a factor. Like a job that involves lifting heavy loads for example. "The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a 'bona fide occupational qualification (BFOQ)' reasonably necessary to the essence of the business." This also goes for apprenticeships and other form of work: "It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption." person can waive off some of the privileges afforded by this law, and the contract of employment can stipulate such waivers. However "the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive."

What happens if an employee opposed some activities in the organization? Or take recourse to legal remedies for grievances? If it is established that the employee is being discharged for any of these reasons and on account of his or her age, then the provisions of the act will apply. It is clearly stated that "It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government."

The law is simple and clear, and the age factor is the most important in its application. The court also rules that while it is law that the plaintiff should prove that the discharge was on account of age, in showalter v university of Pittsburgh medical centre the third circuit held that as a prima-facie age case, "the plaintiff was not required to prove the fact that the employer retained workers below the age 40, but it was sufficient to show that the employer kept employees younger than the plaintiff. Thus a reliable indicating factor relating to age discrimination could be that the rest of the employees are much younger than the complainant."

The authority for investigating and providing relief for this type of harassment is the EEOC as stated before, and the commission has a set of procedures to be followed in case of a dispute. "Under a disparate impact claim, plaintiffs generally allege that a facially-neutral practice or program (e.g., a decision to eliminate higher-salaried positions) has a discriminatory effect, or 'impact,' on a protected class of employees." Therefore by implication there is a need to prove statistically that there has been an adverse influence on the class which is protected. After the decision in "by necessity, therefore, proving such an effect involves the use of statistical analyses. The parties in such a case must retain statisticians in order to determine whether there has been a disproportionate impact on the relevant protected class. Now that the Smith case has been decided, employers should think carefully about doing such a statistical analysis for employees age 40 and over when effectuating workforce changes such as layoffs."

Procedures:

Except for complaints under the Equal Pay Act, all proceedings under the EEOC require the filing of a charge with the commission before the filing of a lawsuit. The law of limitation applies for suits and complaints filed before the commission. The agency has the power to dismiss a charge at any time if it is felt to be vexatious and there will not be proved any violation of law. The discrimination charges and consequences are being taken seriously by the employers. This is a sign of the impact. Further we have to note that the Commission has implemented recommendations by opening the National Contact Center --NCC which provides the public with latest technology and facilities to access the services of the Commission. The institution was commended on its performance by the U.S. Commission on Civil Rights -- USCCR. The programs are thus effective and in line with the implementation of the commission objectives. While the effect of the commissions activities help the workforce and have a wide range impact, and the guidelines of the commission is mandatory to be followed, there are two major hurdles that stand in the way of the progress and effective authority of the commission. The laws enforced by the commission have a wide range of impact on the workforce, and there fore its functions will have to be realigned with the changes brought about at the workplace itself due to the variations in the pattern of work and technology.

The history of the Law and rulings

There were rulings which caused the act to become wider in scope and be effective. The 'U.S. Supreme Court' ruling with regard to 'Smith v. City of Jackson' on March 30, 2005 is an example. This decision changed the arena of discrimination litigation. In this landmark judgment the 'U.S. Supreme Court' gave the ruling that "workers age 40 and older may prove discrimination under the Age Discrimination in Employment Act -- ADEA using a disparate impact theory." "Prior to this holding, a claimant could only obtain recovery under the ADEA by claiming that an employer, or prospective employer, made an adverse employment decision that was motivated by intent to discriminate against the claimant because he/she was at least 40 years of age.

This case now allows a claimant (or claimants) to recover if it can be shown that an employer used a neutral business practice (not motivated by discriminatory intent) that had an adverse impact on people age 40 and over. The claimant need not establish that the employer intended to discriminate." The litigation history in this for m of discrimination shows a number of court verdicts and contentions that have effectively shaped the law. One such case which began far back in 1973 is the "McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)."

The case is that a mechanic of African-American descent was dismissed during reduction of workforce. It was alleged that the employee had been a 'civil rights activist' who led protests against the company's policies, which was illegal. Thus the company justified the termination on many counts and that age discrimination did not occur. The 'Supreme Court' discussed the 'burden of proof' in this case and set out a mandatory requirement for plaints under the "Title VII of the Civil Rights Act of 1964." These were: "The Plaintiff must prove the case prima-facie by revealing "(i) that she belongs to a protected class; (ii) that she applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected; (iv) after that rejection the employer continued to look for applicants with skills similar to those of the plaintiff to fill the job opening. If the plaintiff can establish this, the burden will then shift to the employer to articulate a legitimate, non-discriminatory reason why the employee was rejected."

Next, in 'Lorillard v. Pons, 434 U.S. 575 (1978)' the suit was on account of dismissal because of age. At that time; the "plaintiff also requested a jury trial" that was refused. Hearing the appeal the U.S. Supreme Court gave another significant ruling on the provision of ADEA with regard to enforcing a claim relating to age discrimination. By giving a notice to the Secretary of Labor a person may take on a civil suit if the Secretary was unable to bring about a compromise. The court gave the opinion "when Congress incorporates sections of an old law into a new law, the Courts will presume that Congress was aware of the administrative and judicial interpretations of that section and desired to adopt those interpretations when it reenacted the statute without change. The Court went on to note that the presumption is particularly appropriate here since, in enacting the ADEA, Congress exhibited a detailed knowledge of the FLSA provisions and their judicial interpretations, as well as a willingness to depart from those provisions regarded as undesirable for incorporation." It was further established that before the ADEA there was a possibility of a jury trial which will be extended to the actions under ADEA, by presumption. Therefore in this case the court held that any Plaintiff who took out a "civil action even under the ADEA is entitled to a trial by jury."

The important decision regarding the mixed motive, that is the motive being another conduct and the result being a citation of age as it happened with regard to McDonnell Douglas Corp. v. Green's case and the case which went through many appeals, Price Waterhouse v. Hopkins, 490 U.S. 228 (1981) has important observations. Ann Hopkins, the plaintiff was the senior manager with the defendants. She was proposed to be included as a partner. In course of time the partnership offer was held for reconsideration. The partners finally refused recognizing her as eligible for partnership. Hopkins used the provisions of the Title VII and 'sued' the company for sexual discrimination. The 'district court' and subsequently the District of Columbia found that the defendants had "unlawfully discriminated against the Plaintiff by giving credence to partners' comments about her that resulted from sex stereotyping."

On appeal by the defendant to the Supreme Court, it reversed the lower court judgments. "The Supreme Court held that the lower courts erred by requiring the Defendant to make its proof by clear and convincing evidence. This test was subsequently adopted by all federal courts in ADEA cases. The Civil Rights Act of 1991 altered the Price Waterhouse mixed-motive standard in Title VII cases. The CRA of 1991 provides that an unlawful employment practice is established when the Plaintiff demonstrates that race, color, national origin or sex was a motivating factor for any employment practice, even though other factors also motivated the practice."

The courts still continue therefore to use the decisions of the Price Waterhouse test for suits under the ADEA. This can be seen in Doll v. Brown, 75 F.3d 1200 (7th Cir. 1996); and Hutson v. McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995). When an employee does not get along well with his new supervisor, it could also be a cause for dismissal. Can it invoke the provisions of this act? This was the question that the Court settled in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) wherein the defendant employed the plaintiff, Hicks as a correctional officer. A new supervisor took an antagonistic attitude to the plaintiff wherein he was harassed and this resulted in a lot of reprimands, and was also demoted, and subsequently dismissed. A suit was filed with the "Federal Court under Title VII for race discrimination."

The 'district court' awarded that there was a "preponderance of evidence in the plaintiff's favor." However the court contended that the "Plaintiff did not prove that the termination was racially, not personally, motivated." Once the plaintiff succeeded in proving this he was entitled to award once he established that the "Defendant's proffered reasons for the adverse employment actions were pre-textual." In appeal the 'Supreme Court' witnessed that once there was a 'prima facie case of discrimination'; it can be presumed "that the defendant unlawfully discriminated against him." It was then the burden of the Defendant to argue a legitimate reason which is not discriminatory and which if believed would make the act non-discriminatory. However the proof of prima-facie case was still with the plaintiff. Thus the Supreme Court ruled that "Defendant had to do under the McDonnell Douglas test was produce evidence of nondiscriminatory reasons, whether ultimately persuasive or not, to rebut the presumption of intentional discrimination. Hicks then had to prove the ultimate question of fact: that the Defendant intentionally discriminated against him because of his race."

Further in appeal a final decree pronounced that "The Supreme Court rejected this standard, holding that rejection of the proffered reasons does not require that judgment be entered for the plaintiff. The Supreme Court also rejected what is known as the 'pretext plus' approach, which requires, for a finding of discrimination, that the fact finder's disbelief of the proffered reasons must be supported by additional direct evidence of discrimination. The Supreme Court held that disbelief of the defendant's proffered reasons will, by itself, permit the trial of fact to infer the ultimate fact of intentional discrimination. No additional proof of discrimination is required. Indeed, what the Supreme Court ultimately adopted is known as the 'permissive pretext' approach." This makes it not mandatory but permissible that where the defense proffers reasons that is not believed by the adjudicating officer, the Plaintiff may be favored. Further proof of discrimination is not mandatory. Thus the law rests that where the court or jury disbelieves the employer's reasons for terminating the employee then the relief asked for under this law can be given withstanding the fact that further proof is not adduced. Thus the laws have given a large leeway in protecting the class of employees. However the law is also likely to have its own repercussions and drawbacks which will be evident as years roll by.