Last Wednesday, the EEOC heard testimony that age discrimination is causing older workers to have a difficult time maintaining and finding new employment. The EEOC believes that the current economic climate is exacerbating this problem. At a minimum, it is increasing the number of employees who claim to be victims of age discrimination. Last year, the EEOC received 22,778 charges of age discrimination, which represented 24.4% of all charges filed, up from 16,548 charges and 21.8% in 2006.
The EEOC heard the following testimony:
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William E. Spriggs, Ph.D., Assistant Secretary for Policy, U.S. Department of Labor: “[D]uring a deep and long recession, the lengths of time that people remain unemployed increases. Older workers have been overwhelmed in this current recession and their numbers are high among the worst indicators. They are the slowest to be reintegrated from unemployment to employment, which indicates that their job search is longer and more challenging. This comes at the cost of human capital depreciation for older workers.”
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Mary Anne Sedey, plaintiff-side employment lawyer: She claimed that older workers rarely litigate discriminatory hiring claims, and urged the EEOC to investigate age discrimination in hiring. She cited three reasons: applicants lack information about why they were turned down, they are reluctant to file a claim based on a hunch, and they cannot find lawyers willing to take their claims.
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Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania State University Dickinson School of Law: He discussed the impact of Gross v. FBL Financial Services, Inc., which held that the ADEA requires a plaintiff to show that his or her age was the “but-for” cause of the employment decision. He argued that Gross applies an unreasonably high burden for plaintiffs in age cases, “preventing potentially legitimate claims of discrimination from ever reaching a jury.”
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Deborah Russell, Director of Workforce Issues in AARP’s Education and Outreach Department: She discussed some proactive steps employers in the healthcare industry have taken to meet the needs of the over-50 demographic.
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Cornelia Gamlem, Society for Human Resource Management: She discussed some suggested best practices for recruiting, retaining, and managing mature workers, including workplace flexibility, retention programs, targeted recruitment, and reductions in force management.
EEOC Commissioner Stuart J. Ishimaru said, “The treatment of older workers is a matter of grave concern for the Commission. We must be vigilant that employers do not use the current economy as an excuse for discrimination against older workers.” Going forward, it is clear that the EEOC will target age discrimination as an enforcement priority. Any company that is either reducing ranks via layoffs, or hiring to re-staff as the economy rebounds, should pay extra attention to age discrimination issues in light of this administrative enforcement.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.