Opinion: Toleration of Age Discrimination Must End. You Can Help End It

There’s a role for government officials, employers and workers in ending a very common form of employment discrimination: ageism.

Although we still have miles to go, the U.S. has significantly advanced since the days when a woman’s place was in the home, an African-American’s was at the back of the bus or in a separate bathroom, and an LGBTQ member’s place was invisibility. Unfortunately, progress in combating age discrimination has lagged, and prejudice against our elders remains prevalent.

In recently reviewing listings on prominent jobs websites such as Indeed.com and LinkedIn for compliance with anti-discrimination laws, I found dozens of listings seeking a “recent college graduate.” It does not take a flashing neon sign for such terminology and other code words to indicate to older applicants that they are not welcome. Both the EEOC and the New York City Commission on Human Rights (“CCHR”) consider such language to be highly problematic, yet this has not stopped even major employers and law firms from placing such ads. 

Age discrimination is as big a problem for those who already have jobs. According to a 2018 AARP survey, 61 percent of people age 45 or older have experienced or seen age discrimination at work and 91 percent of these respondents believe that such discrimination is common. For FY 2019, 21.4 percent of filings with the federal Equal Employment Opportunity Commission included age claims. In addition, older employees who lose their jobs are consistently more likely to be long-term unemployed (27 weeks or longer) than younger employees. For example, in 2019, 55-64-year-olds were 30.3 percent more likely to fall into this category than 35-44-year olds.

So what can be done to improve the situation? There are a number of steps that New York City government can take. To begin with, governmental officials can investigate and take appropriate action when apprised of discriminatory conduct. Obviously, every governmental office and agency must take age discrimination as seriously as other protected categories.

City government should get a better handle on the scope of the age discrimination problem, beginning with its own 350,000+ army of employees. For its annual Workforce Profile Report, New York City already breaks down hiring data by age. However, the data only counts successful candidates, not job applicants. Since almost all applicants must apply through the NYC.gov jobs portal, age information can be confidentially gathered in the same way that racial and military service information is currently collected. A comparison of hiring rates versus applicant rates may then reveal which agencies and titles have the biggest disparities.

Confidential information should also be collected from retiring employees through surveys or exit interviews. Is each “retirement” really voluntary? Some employees feel coerced into retirement through a hostile environment, failure to receive deserved promotions, transfer to unfavorable locations, or the proliferation of undesirable assignments.

Government should ensure that there are no systemic barriers to hiring and retaining older employees. For example, it is intolerable that fixed budgets for each public school give the principals an incentive to replace more expensive older teachers with cheaper, less experienced ones. In addition, why do police officers and firefighters face mandatory retirement based on age even if they can still meet job requirements?

What can employers do to fight discrimination? Just scratching the surface, here are a few ideas:

• Eliminate candidate search algorithms that work against or eliminate older applicants (and applicants based upon race, gender and other protected categories as well.) 
• Ensure that job searches utilize multiple channels appealing to different demographics.
• Be wary of employee referral programs that can result in an accentuation of present imbalances.
• Consider adopting phased retirement and other flexible arrangements. Why should leaving the workforce be an all-or-nothing proposition?
• Develop appropriate, realistic job requirements before posting a position, never inquire about age, provide anti-discrimination training for hiring personnel, and have interviews conducted by people of various ages.
• Do not tolerate dismissive remarks and attitudes within the company, and watch to ensure that older employees are given the same opportunities and rewards as younger employees.

Most importantly, for any anti-discrimination measures to work, many people must abandon their outmoded ideas about older employees. For example, how much will be accomplished by banning “recent college graduates” language if the company will only interview such people anyway? 

There are numerous articles that explode the harmful myths surrounding older employees, and cite the many benefits of hiring and retaining them. Among these benefits are institutional knowledge, experience in navigating difficulties, substantial cost savings from reduced turnover, a different viewpoint added to the mix, reliability, and focus leading to enhanced productivity. Older employees are also much more adept at learning new technology and systems than many assume. 

Employers need to familiarize themselves with the research about older employees, take it to heart, and act accordingly. This will create a win-win scenario for their companies and for the loyal, motivated and skilled older employees whom they hire.

If you are an older worker, what should you do? Keep your skills up to date, optimize your resume to survive screening, prepare well for interviews, and otherwise familiarize yourself with some of the ubiquitous job search tips available online. If you feel that you have been discriminated against as an employee, raise the issue with supervisors and human resources personnel. Don’t be shy or buy into efforts to devalue you; you are entitled to be judged on your merits, experience, and all else that you uniquely contribute. Keep records of everything, including what people said, when they said it, and the names of any witnesses. You may think that all events and comments are seared into your brain, but resolution can take a long time, memories fade regardless of age, and the documentation could prove valuable. 

If your internal efforts, including your written letters and e-mails, do not elicit an appropriate response, consider filing with a city, state, or federal human rights agency. Although justice is neither quick nor easily achieved, the investigations and any litigation are cost-free to you. Of course, hiring a private attorney to file in court can also be a very good option, especially if the case is strong and damages are substantial.

Finally, support and get involved with organizations that support seniors such as AARP, ASA (American Society on Aging), and The Radical Age Movement. The time for passivity in the face of discrimination is over.

Ray Karlin is the senior attorney at the New York City Commission on Human Rights. The views expressed here are his own.