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For Older Workers, Getting a New Job Can Be a Gamble

Getting fired for getting old — or never being considered for an opening in the first place — is a problem that's only going to get worse.
Wal Mart Focuses On Growth As It Opens Six Supercenters In Ohio
Clayton Fackler, 72, works at the check out at the new 2,000 square foot Wal-Mart Supercenter store May 17, 2006 in Bowling Green, Ohio.J.D. Pooley / Getty Images
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Getting fired for getting old — or never being considered for an opening in the first place — is a problem that's only going to get worse.

America's workforce is getting older, and fast. By 2022, about 35 percent of the U.S. labor force will be over 50, according to AARP. That's up from 25 percent in 2002.

At the same time, a stubbornly middling economic recovery continues to set old workers against younger ones, and places a target on the back of every experienced, higher-salaried employee.

"Every time there's a recession, there's a pattern of age discrimination," said Patricia Barnes, author of the book "Overcoming Age Discrimination in Employment."

"It is totally predictable, but Congress has done nothing," she said.

Employer tactics

While there is legislation in place protecting older workers — the Age Discrimination in Employment Act — a series of Supreme Court rulings since the law's enactment in 1967 has chipped away at those rights. Most recently, a 2009 decision eliminated so-called mixed motive cases; now plaintiffs must prove that age was the main reason for a layoff, not simply a contributing factor.

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"The employer can throw off all kinds of reasons for firing someone. No one is perfect," Barnes said. "Then the plaintiff has to prove those reasons aren't the real reason."

Employers can try a wide variety of tactics to edge out older, generally more expensive workers. A jury in a California state court recently awarded $700,000 to a firefighter after his employer was accused of deploying "freeway therapy" — transferring older workers to far-away outposts, hoping long commutes would wear workers down so they'd retire.

Companies have ways to avoid getting older workers on the payroll in the first place, too. Browse any job posting site and you are bound to find openings that ask for "digital natives" or other code words that mean younger and cheaper.

"Age discrimination is the last form of discrimination that we are willing to accept. It's not viewed as wrong or as serious as other forms of discrimination," said Laurie McCann, senior attorney with the AARP Foundation Litigation.

"I can make jokes about Dave's age and no one is going to get upset," McCann said. "If someone said something about race or gender there would be consequences, but it's OK to keep asking someone when they are going to retire to spend more time with their grandchildren."

A bill that would essentially reverse the 2009 ruling and permit mixed-motive age cases — now called the Protecting Older Workers Against Discrimination Act has been introduced in Congress several times, but has never reached a vote. That leaves older workers who lose their job with a higher burden to clear in court.

The seeds for today's problems were sown back in the 1960s,when Congress passed the original age discrimination bill, Barnes said. The law made discrimination of most workers over 40 illegal, but it stopped halfway.

Older workers were deliberately not added to the other vulnerable classes protected by the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

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That decision had many technical legal consequences, but chief among them — it's harder for plaintiffs to win high-dollar damages, so older workers have less leverage, and they can struggle to attract legal help unless they have deep pocketbooks.

Hits women harder

Despite these hurdles, the U.S. Equal Employment Opportunity Commission gets about 20,000 complaints every year alleging age discrimination. And there are victories for plaintiffs. Shoe retailer DSW agreed to pay $900,000 in 2014 after it was sued by the EEOC, which alleged the retailer picked older workers to fire during a reduction in force, and even fired managers who balked at firing older workers. (DSW denies the allegations.)

To avoid legal problems, corporations typically offer severance packages to laid-off workers in exchange for waivers of their rights to sue. In 1990, Congress passed the Older Workers Benefit Protection Act, which clarified that workers must be offered something of real value in exchange for signing waivers. Rarely do those packages provide much buffer against what happens next, however.

Older workers who do lose their jobs face a host of problems trying to replace their income, and many don't. A study by the St. Louis Federal Reserve earlier this year found that jobless women over 50 are hit particularly hard — roughly half of those older unemployed women entered the ranks of the long-term unemployed in the years after the recession, compared to less than one-quarter before it.

"It's a terrible thing, particularly for women in their 50s who somehow lose their jobs. I think age discrimination leads to poverty," Barnes said.

"In a way we are allowing companies to take these kinds of shortcuts, and [society] is picking up the tab for things like health benefits, Social Security. ... It's abominable that people don't recognize this serious problem and its huge impact on society," Barnes said.