Post-Recession Age Discrimination

In spite of the fact that the Age Discrimination in Employment Act, or ADEA – aimed at preventing employment discrimination in the 40 and over demographic – is in its 45th year, the presence of age discrimination in the workplace has actually risen post-recession.

Employers have cause to be nervous in this cash-strapped, post-recession era, where older employees command larger and larger salaries thanks to yearly and incentive based raises, and would-be employees face a 10% unemployment rate and are looking for anything that might provide even a marginal style of living.

The post-recession period is generally regarded by economists as beginning in December of 2007 and ending in 2009, and as the United States Department of Labor notes – “Many of the statistics that describe the U.S. economy have yet to return to their pre-recession values.”

Jobs are certainly one of these venues. The financial reporting site officially reports this month’s unemployment rate at 7.8 percent which is the lowest it has fallen since early in 2009. Unfortunately, as some argue (quite convincingly), that rate is calculated without taking into consideration those who have used all their unemployment benefits, simply stopped looking for a job, or retired. Taking those factors into account yields a true unemployment rate of 14.9 percent, according to the Wall Street

Still, as things improve – knock on wood – those looking for work might want to check out the varied and manifold laws protecting employees and the merely hopeful. These include not only the ADEA, but disability discrimination laws which include those over 40 years old as a demographic displaying the usual age-related ailments; that is, a moderate loss of hearing and vision, loss of dexterity, loss of stamina, shorter attention span, mild to moderate forgetfulness, high blood pressure, heart disease, Type two diabetes, and, among white collar workers, cervical and lumbar spondylosis from sitting hunched over a keyboard eight hours a day.

The ADEA addresses issues for those over 40, yet interestingly enough, one of its laws is that an apprenticeship (or internship) can’t be used to discriminate against older applicants unless the limitation is contained in a specific exemption, or if the EEOC provides a specific exception. The last ruling on the ADEA was delivered July 1 of 2012 and resolves two issues: disparate impact claims, and reasonable factors aside from age defense, as published in the March 31, 2008 Federal Register.

Few people know about the apprenticeship rules, including many employers. Many are aware of the restrictions on job advertisements, which may not include stipulations (beyond necessary skills), age preferences, or limitations (male vs. female, tall vs. short, etc).  In rare instances, where age can be shown a causative factor in meeting essential job metrics (for example, active military service), a job advertisement may designate age. In spite of this it is not uncommon to see want ads using language that suggests they are looking for younger workers.

Regardless of the laws put in place to protect older worker and would-be workers the current economy is not one in which many are willing to press their legal rights. This is often the case amongst applicants who fear losing credibility they came into the job market with or who believe that disputation is likely to put a black mark next to their names in any future hiring interviews. After all, age discrimination laws are quite complex and can be difficult to prove when paired in fact the ADEA does not specifically prevent employers from asking an applicant’s age or date of birth.