Age Discrimination in The Workplace - Research Paper Example

Age Discrimination in The Workplace 1. Introduction Age discrimination involves treating an applicant or an employee less favorably because of his age (EEOC, n.d.). The Age Discrimination in Employment Act (ADEA) forbids discrimination to any aspect of employment including hiring, firing, training, layoffs, promotions, fringe benefits, assignments and any other terms and conditions of employment. ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. However, ADEA permits employers to favor older employees even if it adversely affects a younger worker over 40 years. The law is applicable to employers with 20 or more employees including state and local governments. ADEA was amended by Older Workers Benefit Protection Act of 1990 (OWBPA) to prohibit employers from depriving the older workers from benefits (EEOC, n.d.). The cost of providing benefits to older workers was greater than the cost of providing the same benefits to younger workers. This works as a disincentive to employers to hire older workers. It has however been permitted that an employer can reduce the benefits based on age as long as the cost of providing the benefits is the same as the cost of providing the benefit to the younger workers. There has been a sharp increase in the number of age-discrimination complaints filed with the EEOC and has been largely attributed to the weak economy and an aging workforce. Today there are more older employees to discriminate against and more economic incentives to do so (Puri, 2003). According to EEOC age discrimination claims were up by 29% in 2008 which is almost double the increase in age discrimination claims (Ghilaarducci, 2009). When it comes to cutting costs, older workers are the targets of layoffs. When companies are forced to reorganize, the older workers are perceived as incapable of keeping up with new technologies. The employers get the support of the law and hence use business strategies as a cover to purge older workers (Puri, 2003). However, an aging workforce can be invaluable asset and organizations using age discrimination as a measure of cost savings are actually spending more than what they would in retaining older employees. 2. Employer’s perception The organizations have a perception that older workers do not and cannot perform as well as the younger workers and they cannot or will not change to the market requirements (Cappelli, 2009). It is just a belief that the older workers cannot perform as well as the younger workers. Older workers cannot adapt to change, are not tech savvy and cannot keep with the changing business requirements (Trafford, 2005). They are not as effective as younger workers. Older people take longer to learn something new. However, downsizing decisions are usually made by a single manager who does not understand the value of experience and an employee’s contribution over the years (Vogel, 2009). They do not even bother to look at the personnel files. EEOC found that an employee was fired from his job collecting trash in Las Vegas by a company that routinely and systematically discriminated against older workers. According to Ghilarducci (2009) a hidden cause for age discrimination claims is the pension crisis. The pensions have eroded since the 401 (k) assets in mutual funds have declined 40 percent. This forces the older people to cling to their jobs or return to the labor market. The employers contribute to the extent of 80% of the total health-insurance which makes the employers feel that their enterprises cannot become globally competitive due to the high burden (Reinhardt, 2009). Since for the older employees, the premium is high, they are keen to employ younger workers. Secondly, the group insurance for the employers is based on claim experience or the health history. Since the older workers are more likely to fall ill or make claims, it drives up the annual insurance premium for the group which encourages employers to exercise age discrimination even though not openly. According to Munnell (2009) older workers should be more attractive to the employers than they were in the past. They are better educated, more experienced and no educational deficit relative to the younger workers. Today physical strength and stamina is not important for employment activities and the employer retirement income programs do not escalate the compensation costs. Centre for Retirement Research at Boston College has revealed that employers do think of the older workers as reliable, knowledgeable about the company and they are comfortable dealing with customers. However, they are apprehensive about the physical stamina of the employees and their ability to grasp new things fast. As far as an economy and the organization are concerned, if the older workers are healthy, it is better to have the older workers continue working than replacing them with younger workers. Several studies have disproved these stereotypes and older workers can learn new technologies, are less absent from work than the younger workers, are no less productive than the younger workers and are less likely to leave for a new career (LMEA, n.d.). The older workers are dependable. Thus employers benefit from the age and experience of the older workers but continue to reel under misapprehension that they are costly to the organization. However, companies in every sector continue to practice age discrimination. Elizabeth Colton, a Foreign Service officer, was offered a two-year posting as chief of the political-economic section at the U.S. Embassy in Algiers (Vogel, 2009a). Eight days later it was found that she would not complete the Algiers tour before she completed 65 and hence the offer was withdrawn. Colton filed a suit in the deferral court alleging that the age discrimination was unconstitutional and based on outdated stereotypes. The mandatory retirement age according to the Foreign Services’ Act of 1980 is 65 but it does not apply to political appointees 3. Employees’ perception After the dot.com the older workers were the only group thriving in the jobless recovery. The younger workers lost ground and the percentage of older workers in employment increased to 12 percent up from 10.2 percent in 2000 (Uchitelle, 2003). However, at that time many employers were holding on to the older staff till the economy strengthened. The older workers were the only age group during the recession and the jobless recovery. While the employers demand for older workers existed, the supply too was available as the older workers seemed to want to work till the retirement age. However, things have changed over the past few years where age has become a discriminatory factor. Employees however have a different perception on the issue of age discrimination. Since the federal laws have eliminated the mandatory retirement age, the decision to retire is now based on their health, the retirement income at hand, the financial status, the peer-group pressure and the need for socialization (LMEA, n.d.). Generational risks to health have been offset by advanced medicare, technology, healthier diet and lifestyles. Older people prefer to work for different reasons ranging from need for income, need to keep the self-esteem, desire to contribute to the society or simply because they enjoy it. The older workers are fighting back when they are confronted with negative stereotypes such as incapability of adapting to new technology, not flexible in their work schedules, or less productive or unhealthy. The older workers are willing to make changes and adapt to the environment. They are wiling to undergo training and orientation in new programs to keep themselves updated. The employers are feeling the impact of the law suits being filed on grounds of age discrimination. The older workers feel that they are capable of learning new technologies such as virtualization and cloud computing (Brodkin, 2009). At the same time they can mentor the younger workers about what they already know. This way they can show their own value to the company. In fact the experience of the older workers can help the young set to avoid the same problems which the older workers faced in their youth. This is of tremendous benefit to the employers who saves in terms of time and cost. Discrimination at the workplace is pervasive, subtle and difficult to prove (Trafford, 2005). Replacing older people with younger ones has become a common process at workplace. The culture is now upside-down. What was an asset has now become a liability and people tend to hide their age in their applications. Until about 40 or 50 experience fetches promotions but after that it is like an excess baggage. Age discrimination manifests itself in the form of curtailed benefits, limited training opportunities, exit incentive programs, and incentive benefits reduced for those that continue to work beyond the “normal” retirement age. Organizations use various words and phrases to disguise the age bias such as ‘lacks versatility’, ‘has been around for too long’, ‘failed to be a forward enough thinker’ (McRae, 2003). Health-insurance in the US is employment based which means that the employer’s contribution to their employees’ health insurance is a tax-deductible business expense (Reinhardt, 2009). However, it is not viewed as a taxable compensation for the employee. Employees are hence against age discrimination as health-insurance premium tax benefits are not available to individuals or families. Families have to buy the health insurance cover with their after-tax dollars. The American Association of Retired Persons (AARP) is against the maximum hiring age and the mandatory retirement age for workers. Hiring should be based on ability and mental and physical tests can be conducted to assess an individual’s ability for the job (McRae, 2003). Workers are even offered early retirement benefits in exchange of an assurance that they would not sue the company for age discrimination. This takes away the rights of an employee for justice. Generally people feel that unlike racial discrimination, the older people should make way for the younger lot to come in but the older Americans have no choice but to work as the Social Security retirement age has risen and the pensions have disappeared (Cohen, 2009). Older workers become not victims of animosity but of unfair stereotypes – that they work more slowly and do not easily adapt to change. Employees feel that age discrimination is a perennial problem as today 35 is considered over the hill. Frederic Clancy and James Hurd have filed age-bias charges with the EEOC after they were laid off from their sales job with Tektronix, an electronic equipment company. Older employees are reluctant to litigate because they could easily find other work. Now out of frustration, even though jobs are not available, people just walk away rather than asserting their claims. Even though some of the older workers that are out of job do not have health insurance, their minds are more occupied with finding a job than filing age discrimination suit. However, of late age discrimination complaints have been rising (NY Times, Oct 12, 2009). Even though age discrimination is on the rise, not all cases of dismissal are due to age-bias. There are many that are not wiling to keep their skills upgraded as they presume they are too old to learn (LMEA, n.d.). Many even leave the labor force completely. At the same time, those that need the job are being forced to delete the graduation completion date from their applications with the hope that this might be overlooked by the recruiters (CBS News, 2009). Some are resorting to taking injections or visiting spas to keep themselves looking young in the hope of landing themselves a job. Many are spending the time between jobs to become familiar with latest technologies and social networking sites. They discuss Twitter and Facebook during interviews to show they are familiar with the subject. According to career consultants the graduation age is insignificant and can be avoided from the applications. They are encouraged to stress their skills and achievements and not their years of experience lest this goes against them. Even having an AOL.com email address is considered to be ancient and having a gmail account is trendy. 4. Age discrimination law It is generally difficult for the older workers to prove illegal age discrimination and employers would never admit it. For race and nationality discrimination the employer has the burden of proving its nondiscriminatory stand but in the case of age discrimination, the older workers have to prove that they have been discriminated against (NY Times, Oct 12, 2009). Two older supervisors at a light bulb company were denied justice as the court rules that it was a “fact of life” that the younger people have to be given the opportunity (Cohen, 2009). The Supreme Court has further endorsed that when older workers file claims they must be able to prove that age was the decisive factor in their firing and not merely a contributing factor. James O’Connor who had been working for a vending machine company for 20 years was replaced with someone younger. O’Connor sued the company and testified that two week before he was asked to go his boss had mentioned that he was too old for this kind of work (Cohen, 2009). However, in another case, the company had to share the burden in proving that there were factors other than age discrimination that resulted in the outcome. The court has sided with a group of workers who were dismissed by Knolls Atomic Power Laboratory in Upstate New York (Barnes, 2008). The company started evaluating workers based on performance, flexibility and critical skills as a strategy to reduce its workforce after buyouts. The result was that 31 workers were laid off and 30 of them were over 40. The process was challenged under the ADEA and the federal government and the court were in favor of the supporters while the business groups resented on the grounds that employers would not be able to respond to market changes and technology as they would be constantly under fear of law suits. The number of age discrimination cases has gone up and it is taking longer than usual for the federal government to settle the cases. In several court cases the court has ruled that if employers fire workers because their salaries or pensions costs are high, it does not amount to discrimination even of it the older workers that receive the maximum brunt of such layoffs (Cohen, 2009). 5. Analysis The literature review suggests that there are several dimensions to the problem. As far as the employers are concerned, to compete in the global market place and the highly competitive business environment, it has become important for them to cut costs. The easiest solution they find is in laying off the older workers as the compensation benefits and the health insurance benefits have become prohibitive. The older workers, according to the employers, are not as deft in adapting to new business environment and the technological advancement that take place virtually on a daily basis. They have been discriminating on the basis of age although subtly and in ways that it becomes difficult to prove. Words are uttered here and there but there is no documentation and it can always be denied. The law wants that the worker should be able to prove that age discrimination was not ‘also’ one of the reasons but the main and the only reason for firing the worker. This becomes difficult for the worker. Business groups feel that the youth has to be given a chance and it is natural for the older workers to step down and make way for the younger generation. However, research suggests that older workers do not become less productive and the employers do benefit from their experience and maturity. They can even be mentors to the younger workers thereby help avoiding the mistakes that they committed in their younger days. Hence, what it amounts to is that while employers recognize the benefits from the older workers, they take this step basically as a cost-cutting measure. As far as the employees are concerned, they are forced to work and many may not want to work had they a choice, after a certain age. The savings level in America is very low which compels the older workers to continue working till they can. Besides, 401(k) asset strength has reduced. This has prompted them to find ways to keep themselves young physically and mentally. They even resort to such practices as hiding their graduation date on their application as they are desperate for the job. Besides, the health insurance premium is too steep for individuals and families to pay after the tax-dollars. This benefit is not granted by the law to individual and the benefit is only with the employer. The employees are however capable of keeping themselves up-to-date on technology and the responding to the changing environment. Provision in the law favors the older workers but several cases have been cited where the resolution has been in favor of the employers as the workers could not prove their stand. While the EEOC and the AARP have been active, many cases have been settled in favor of the employers. This is because age discrimination is always subtly practiced and under different issues. 5. Conclusion and recommendations As the technological changes sweep across the globe, employers, in a bid to compete, would require workers that can help contribute to their growth. The employers recognize the valuable contribution that older workers can give but they are forced to remain cost conscious. This manifests itself in the form of age discrimination under different names. The workers feel they are being side-tracked because of age and most need the jobs for economical reason. To remain competitive and updated, both the workers and the employers can make efforts so that they gain mutually from the association. For instance, the employers should not discriminate against the older workers when it comes to training and development. Training should include the importance of changes in behavior. They should review the organization’s culture and the rethink the screening and the hiring process (All Business, 2009). The organization should commit itself to providing a supportive work environment for the older workers. Salary requirements should not be assumed on the basis of age. Focus should be on the skills and ability and not on the age which should in fact not even be asked in the application form. The younger mangers in the organization should be familiar with the age discrimination laws. They should also be made cognizant of the value of the experience of the older workers. In any new project the team, should have an equal mix of older and younger workers based on ability. Older workers can be valuable mentors to the younger workers. The older workers should, on their part, be willing to change their attitude, behavior and their skills as per the requirement in the organization. Reference: All Business. (2009). Avoid Age Discrimination in the Workplace. Retrieved online 08 November 2009 from http://www.allbusiness.com/human-resources/workplace-health-safety-employment/11441-1.html Barnes, R. (2008). Court Backs Workers In Age Bias Lawsuit. Retrieved online 08 November 2009 from http://www.washingtonpost.com/wp-dyn/content/article/2008/06/19/AR2008061901359.html Brodkin, J. 92009). Worried about losing your job to a younger, cheaper IT worker?. Retrieved online 08 November 2009 from http://www.itworldcanada.com/news/worried-about-losing-your-job-to-a-younger-cheaper-it-worker/109434 Cappelli, P. (2009). Prejudice Is Flourishing. Retrieved online 08 November 2009 from http://roomfordebate.blogs.nytimes.com/2009/10/06/older-workers-and-their-rights/ CBS News. (2009). Market Tough for Older Workers Post-Layoff. Retrieved online 08 November 2009 from http://www.cbsnews.com/stories/2009/07/02/business/main5131179.shtml Cohen, A. (2009). After 40 Years, Age Discrimination Still Gets Second-Class Treatment. Retrieved online 08 November 2009 from http://www.nytimes.com/2009/11/07/opinion/07sat4.html?_r=1 EEOC. (n.d.). Facts About Age Discrimination. Retrieved online 08 November 2009 from http://www.eeoc.gov/eeoc/publications/age.cfm Ghilarducci, T. (2009). A Lose-Lose Situation. Retrieved online 08 November 2009 from http://roomfordebate.blogs.nytimes.com/2009/10/06/older-workers-and-their-rights/ LMEA. (n.d.). Older Workers and Elderly Workers. Retrieved online 08 November 2009 from http://www.wa.gov/esd/lmea/sprepts/newsp/oew.htm McRae, S. (2003). Age Discrimination in the Workplace. Retrieved online 08 November 2009 from http://students.washington.edu/aliss/silverfish/archive/april2003/mcrae.pdf Munnell, A. H. (2009). More Expensive Workers. Retrieved online 08 November 2009 from http://roomfordebate.blogs.nytimes.com/2009/10/06/older-workers-and-their-rights/ NY Times. (2009). Preventing Age Discrimination. Retrieved online 08 November 2009 from http://www.nytimes.com/2009/10/13/opinion/13tue3.html?_r=2 Puri, S. (2003). THE UNRETIRED; As Layoffs Rise, So Do Age-Discrimination Charges. Retrieved online 08 November 2009 from http://www.nytimes.com/2003/03/18/jobs/the-unretired-as-layoffs-rise-so-do-age-discrimination-charges.html Reinhardt, U. E. (2009). Is Employer-Based Health Insurance Worth Saving? Retrieved online 08 November 2009 from http://economix.blogs.nytimes.com/2009/05/22/is-employer-based-health-insurance-worth-saving/ Trafford, A. (2005). The Age of Discrimination. Retrieved online 08 November 2009 from http://www.washingtonpost.com/wp-dyn/articles/A6202-2005Feb7.html Uchitelle, L. (2003). Older Workers Are Thriving Despite Recent Hard Times. Retrieved online 08 November 2009 from http://www.nytimes.com/2003/09/08/us/older-workers-are-thriving-despite-recent-hard-times.html?scp=3&sq=baby%20boomers%20retire%20leaving%20skills%20gap&st=cse Vogel, S. (2009). Age Discrimination Claims Jump, Worrying EEOC, Worker Advocates. Retrieved online 08 November 2009 from http://www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071503760.html Vogel, S. (2009a). Too Old for Foreign Service Work? Retrieved online 08 November 2009 from http://www.washingtonpost.com/wp-dyn/content/article/2009/10/01/AR2009100104975.html Read More