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Older jobless workers struggle as age bias claims rise

For more than six decades — and more than six recessions — Andy Rooney, 92, has held on to his job. His last day at work was shown in a final broadcast on CBS’ ‘60 Minutes’ yesterday.Jim Watson / AFP - Getty Images

For more than six decades — and more than six recessions — Andy Rooney, 92, has held on to his job. His last day at work was shown in a final broadcast on CBS’ “60 Minutes” Sunday. It’s a feat today’s recession-weary older workers, who aren’t even near retirement, may be envying.

The ranks of older workers among the long-term unemployed have swelled of late. Many of them have lost their jobs in this economy, while others are finding it difficult to find new ones,  and the harsh reality is their age is part of the reason.

Age discrimination is viewed as an acceptable bias in many of the nation’s workplaces and it has only worsened in this tough economy.

“There is no question that age bias is rampant throughout American society and in the workplace in particular,” said Howard Eglit, a professor of law at Chicago-Kent College of Law who focuses on law and aging.

Workers over the age of 50 realize there’s a problem, especially in this tough job market, he added.

“It’s not something that’s imaginary or self-defeating,” Eglit said. “It’s only a common sense realization that the odds are against them.”

Indeed, the number of older workers filing complaints with the federal government for age discrimination has reached record levels since the recession began, rising steadily from 16,000 in 2006 to more than 23,000 last year, according to the Equal Employment Opportunity Commission.

In one high-profile age bias case — which was settled in August for $3 million — technology firm 3M was charged with illegally laying off hundreds of workers who were over 45 years old.

The EEOC said 3M:

  • Laid off many highly paid older employees, among others, apparently to save money and cut workers in salaried positions up to the level of director.
  • Denied older employees leadership training and laid them off to make way for younger leaders.

The agency also reported on an internal e-mail from a 3M employee. It allegedly contained the following phrases:

“We should be developing 30-year-olds with General Manager potential,” and “he wants us to tap into the youth as participants in the leadership development.”

3M’s issues started with a mass reduction in force, or RIF, and that’s often where issues of age discrimination can arise, according to Gavin Appleby, an attorney for the employment law firm Littler.

“When we get involved in a RIF we typically do a demographic analysis,” he explained. “We typically see no adverse impact relative to race and gender, but we see it relative to age.”

Employers often use a RIF as an opportunity to let go of poor performers who may have been with a company for a long time, Appleby said. Another issue, he added, is that some managers may see older workers as closer to retirement and feel less guilty about laying them off because they’re perceived as having more of a financial cushion.

He’s not convinced employers are consciously trying to cut the oldest workers.

“It’s fairly rare that someone says, ‘I want to get rid of old people,’” Appleby said.

Laurie McCann, a senior attorney with AARP, disagrees.

“When companies want to downsize, the knee-jerk reaction is cut the older workers,” she said.

“They want to do more with less, and they think they have to cut the least productive workers,” McCann added. “One stereotype is the older workers are not as productive.”

It’s all about perceptions, added Chicago-Kent College of Law’s Eglit. Some people believe older workers are less adaptable, pose higher health insurance costs, get injured more and have higher rates of absenteeism, he said.

In reality, Eglit added, older workers are just as adaptable and trainable as younger workers. Young women cost the most to insure because of pregnancy issues, and younger workers are out more often than their older counterparts. As for injuries, he said, older workers get injured less but do take longer to recover.

Clearly workers aged 55 and over are finding a tough go right now, especially when it comes to finding new jobs. When they’re laid off, older workers are more likely to be out of work longer than younger employees.

According to an AARP report on August’s employment data:

  • The average duration of unemployment for job seekers aged 55 and over was 52.4 weeks, compared with 37.4 weeks for the younger jobless.
  • More than half of older unemployed workers, or 54.9 percent, were “long-term unemployed” — that is, they had been out of work for 27 or more weeks.

One big problem for older workers is that they are becoming increasingly disheartened by their job searches. The number of older workers classified as “discouraged” rose to 287,000 in August, up from 234,000 in July.

“Discouraged workers are not looking for work because they believe that no work is available, employers would find them too old, they lack the necessary schooling/training, or they face other types of discrimination,” according to the AARP report, which also notes that “at the start of the recession in December 2007, only 53,000 older people were classified as discouraged workers.”

For those employees who feel they’ve been victims of age discrimination, proving it in court got even harder following a 2009 Supreme Court decision in "Gross v. FBL Financial Group.” The decision made proving age bias more difficult than proving race or gender discrimination, said the AARP’s McCann.

Employers, she continued, know age bias claims are more likely to go unchallenged “because employees sense the futility about challenging it in court.”

Rick Gibbs, senior HR specialist at Insperity, a human resources solutions firm, acknowledged some managers have a natural tendency to focus on superficial things rather than actual qualifications, or the competencies people have to do a job. But he also put the onus on  employees to assess their own situation.

“They have to see beyond their own perceptions of how old they are. Maybe it’s time for a job seeker to develop himself or herself,” he said. “Businesses want people who can look at themselves and adapt.”

A self-overhaul, however, is no guarantee the workplace will become more welcoming to a worker.

“There’s so much training and outrage about racial epithets and the visceral reactions that go along with that, but there isn’t the same visceral reaction with respect to ageist comments,” said Melanie Poturica, an attorney for employment law firm Liebert Cassidy Whitmore, who does a lot of workplace training.

“One of the things I try to explain to supervisors and managers is they really need to be more sensitive about the kinds of things being said in the workplace,” she explained.

As for Rooney, he spent a lot of time poking fun at how much of a fuddy-duddy he was and often railing against the latest new gizmos and gadgets, but he still kept his career going into his 90s.

“Andy Rooney somehow managed to combat the stigma,” said Chicago-Kent College of Law’s Eglit.