Age Discrimination in the United States of America - Research Paper Example

Abstract

This paper is a research paper on age discrimination in the United States of America. The discussion provides the definition of age discrimination as giving a person unfair, unequal or less favorable treatment on the basis of age. Age related prejudice is most rampant in US programs and activities which get financial support from the federal government. The paper is therefore divided into eight sections as follows: the introduction which covers discrimination in general; discussion on the age discrimination in the U.S; the four different types of age discrimination i.e. direct and indirect age discrimination, harassment and victimization; circumstances under which differential treatment on the basis of age is legal; discussion on the anti-age discrimination laws in America i.e. the Age Discrimination Act of 1975 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA) and the Workerforce Investment Act of 1998 (WIA); how the ADEA prohibits age discrimination; comparison between the ADA and ADEA and the conclusion.

Keywords: Age, discrimination, U.S, ADA, ADEA, direct, indirect, harassment, victimization.

Introduction

Discrimination refers to the subjection of certain groups of people to unfair treatment basing on their race, age, religion and gender. It is usually an act or determination towards a people with the aim of disadvantaging them through giving of hostile treatment dissimilar to the entitlement of others (England, 2015). There are various forms of discrimination including gender-based, age, workplace, racial and religious discrimination but this research paper focuses on the age discrimination in the United States of America. It is worth noting that America has witnessed widespread cases of discrimination particularly when it comes to accessing services funded by the federal government but the presence of the anti-discrimination laws are actively helping to ensure equity and equality of all citizens.

Age discrimination in the United States of America

Age discrimination is the giving of unequal, unfair or less favorable treatment to a person because his or her age does not meet the set minimum requirement for consideration (Nikolaev and Pavlova, 2016). But showing prejudice to other people on the basis of their age is in total disregard to the fact that growing older is a natural occurrence in life which no one can control. Usually, some of the attributes that come with aging, for example appearance of grey hair, elicit negative perceptions and assumptions from certain people. In fact, there are beliefs by a section of the population that the elderly (older people) are not in touch with reality hence they make less contribution to the society as opposed to the younger generation.

But age discrimination affects both the old and the young since there are instances where services are given depending on the age of the recipient. It is imperative to say that the negative attitudes and stereotypes are the factors which foster age discrimination. However, such features are not always common with the young people, the reason why age discrimination targets the old. In as much as age discrimination is majorly linked with people in the old age, it also has some adverse effects on people in all other age groups. But this is particularly in cases where discrimination on the basis of age is considered legal. Age discrimination ought to be discouraged by all means possible to ensure equality and protection of the dignity of all people.

In the United States of America, age discrimination is mostly rampant in employment and programs and activities with monetary support from the government such as the health care and education. It is said that in employment, there is a kind of obsession with the youths in the American culture. But this presents the problem of fueling the negative perception which people have of the aging group of population in the society, even at the place of work. It is argued that a good number of employers are reportedly embracing age discrimination but using it as a strategy for the protection of older workforce from prejudice as compared to the younger workers (Sargeant, 2016). The protection has a provision in the US Age Discrimination in Employment Act of 1967 (ADEA).

The ADEA is a federal statute which acts as a shield for laborers and job seekers of above forty years (Schrader and Nazarov, 2015). The act outlaws age discrimination leveled against the older people in the entire employment process. But the law is not applicable to those working as elected officers/officials, personnel in the military and even independent contractors. Age based discrimination is an indication of biasness in employment and even accessing basic services such as education. In fact, the denial or discrimination shows that there is no objective evaluation to promote equality in accessing services and achieving higher productivity in the corporate sector (Barrington, 2015).

Now, the most effective way of identifying the varied sub-groups of people in the society or an organization is through knowing their age. This is fact that should be ignored going by the need for productivity in the workplace, business or maintenance of good social networks and promotion of equality. Though it is argued that the area of age related prejudice is yet to be fully explored, the existing studies and data reveal that age discrimination has become part and parcel of the American societies. This argument is founded on the notion that it is no longer easy to know if racial, religious or gender-based discrimination exists in US (North and Fiske, 2013).

Reaney (2015) argues that age discrimination is a tenacious problem in the U.S which may not go away any time soon. For example, in the corporate sector, the elderly are greatly disadvantaged and are mostly overlooked during recruitment processes, thanks to the ever increasing number of the millennials. Moreover, it is reported that the older people are rarely considered for jobs and it really takes them a very long time to find employment. Sadly, when the opportunity comes their security is never guaranteed as they can easily be replaced by the younger generation at the employer’s will. Furthermore, employers are no longer even interested in looking for experienced employees but go for the young workforce. Therefore, despite the numerous years of experience that older people may have, the age becomes their great undoing or obstacle to be considered for a job.

As evidence, the U.S. Equal Employment Opportunity Commission reported that it received a total of 20,588 age discrimination related charges in the year 2014 (Nikolaev and Pavlova, 2016). This was higher than the 17,837 cases recorded a decade before thereby proving the seriousness of age discrimination in employment. In as much as there was a remarkable decrease from the 2008 peak of 24,582 charges, experts in legal and employment matters are for the opinion the situation is a common phenomenon. They therefore assert that it might still get worse in the coming years now that there is an increasing number of the younger population seeking employment coupled with the reluctance of baby boomers to exit from their jobs.

As noted earlier, age discrimination in the United States of America is fueled by the sheer perceptions and stereotypes that they are not technologically savvy. As such, in many organizations, there is a high rise of ageism hiring and firing. However, efforts to do away with incidences of stereotyping people on the basis of age remains a pipe dream since there are still intractable assumptions as far as age discrimination is concerned. This argument is furthered by the thought that as one ages, their job performance decreases. But the fact remains that age prejudice is very detrimental to the quality of life particularly to the older generation.

Further evidence of age discrimination is remarkably captured in the American Association of Retired Persons (AARP) survey of 2013. According to the survey, two-thirds of 1,502 adult workers falling in the category of the 45 – 74 years of age have been victims of ageism (discriminating against the older people). This is despite the fact that the existence of the ADEA 1967 is for the prohibition of discriminating against the older population. The resulting effect of ageism (age discrimination) is very severe on the older people who end up suffering from poor self-esteem, low social and economic opportunities and aggravated status of physical health and worse is when one plunges into depression or mental problems.

The different types of age discrimination

There are four main ways through which a person can face discrimination on the basis of age and these include the following:

• Direct discrimination

This is when a person receives a worse treatment as compared to that of another person yet in similar circumstances just because of the difference in their ages (Romei and Ruggieri, 2014). A case in point is where an employer denies a worker an opportunity for training with the argument that the employee is very old while giving out the chance to younger employees. The discrimination is driven by the thought that the memory of the older worker is weakening and so training the old is considerably a waste of resources. This is because of the fact that they may not be able to share effectively the knowledge they gather from such training with other employers. But then such prejudice may be accepted or allowed on the basis of abilities and health issues.

Conversely, an organizational management can give room for age discrimination in the organization but there must be a sufficient reasoning for the same. And this is referred to as objective justification (Roscigno et al., 2007). For example, rejecting a job application from a sixteen year old person by a construction company is justifiable because statistical proofs show that accidents in the construction sites are too dangerous for the under-aged. Also, over-charging people below twenty years of age for accommodation in a guest house may be justified that the discrimination is just a mere attempt to discourage the young people from the facilities as they may be viewed as a threat to security or be agents of destruction of properties.

• Indirect discrimination

This is a form of discrimination in which an organization has an adopted policy or way of working which is applicable to every employee. However, the policy disadvantages people of a certain age group (Romei and Ruggieri, 2014). The rule or strategy may be directly age-specific; yet there are inexplicably negative effects behind it. For example, an organization has a policy stipulating that workers with post graduate qualifications are eligible for promotion. The policy is applicable to everybody but a worker at twenty two years is disadvantaged by the policy as they may not have attained such qualification at that tender age.

In organization, it is the older employees who gravely suffer from this kind of monstrous policy. Similarly in business, there are also cases whereby indirect age discrimination applies. For instance, allowing customers to pay for goods through installments as long as they are in employment. While the strategy is good for every customer, it disadvantages the people who are not in active job. Also, indirect discrimination just like direct discrimination may be allowed especially if the organizational management or an employer is able to prove with well convincing reasons. This is also described as objective justification (Roscigno et al., 2007).

• Harassment

Harassment is a case whereby a person is subjected to humiliation, hostility, degradation or an offensive surrounding (Fredman, 2014). It is a very common form of discrimination and is most often synonymous with the work environment. For instance, a manager who makes a derogatory statement in reference to a junior employee (mostly young interns) is considered to be harassing the worker on the basis their age. Also, a trainer (boss) making a comment on the slowness of the old workforce in learning the usage of new software packages is just subjecting them to harassment due to their age.

It is worth noting that whether in employment, educational set up, business or in training, there is no any justification for harassment. This is because of the grave impacts it has on victims such as mental torture, shame and low morale. But commentators argue that if an organization (the employer) is able to prove that it did enough to ensure there is no harassment but others still manage to harass their peers or colleagues, the victim cannot sue the organization or the employer as the employee harasses the victim out of their own interests or will. But even so, most organizations provide room for the victim to make claim against the person (harrasser).

• Victimization

This is a form of age discrimination in which a person gets a bad treatment for making a complaint due to age discrimination as the stipulations of the Age Discrimination Act of 1975. Victimization can also happen in the event that the person may have appeared to be giving support to somebody who has reported a complaint arising from age discrimination (Fredman, 2014). For example, if a junior employee reports a claim of sexual assault or harassment from a senior colleague but the manager decides to accuse the worker for being the cause for the assault, it amounts to victimization. Also in the same breath, if another person appears to be supporting the complainant and the manager subjects the third person to a bad treatment for his/her involvement in the case, then that is also treated as victimization.

Circumstances under which different treatment basing on age is lawful

Treating people differently may be viewed as lawful as per the following arguments:

• If belonging to a certain age group is a requirement for employment. This is known as occupational requirement, for example limiting the age for eligibility to work in a construction site because of the numerous probable dangers is legal.
• An organization may be taking a positive strategy of encouraging or developing the people of an age group which is facing under-representation or is disadvantaged in one way or another. If age discrimination is based on this argument, then it is considered lawful.
• If there is a set compulsory age for retirement and which is visibly justifiable with respect to the role of an employee, then the age discrimination is lawful (objective justification).
• Age discrimination can be lawful if the situation at hand falls in any of the exceptions to the Age Discrimination Act thereby letting organizations to offer differential treatments in the job or service on the basis of age.
• In the financial services sector like in insurance, age limits are the determining factors to the types of services to be offered. In such a case, discrimination on the basis of age is allowed.

Anti-age discrimination laws in US

Non-discriminatory laws are very critical to the designing of public policies for the well-being of the present day states. Such laws offer social protection and eliminate cases of denial of opportunities to people who are disadvantaged in one way or another. There are two main acts which outlaw age discrimination in the US and these are the Age Discrimination Act of 1975 and the Age Discrimination in Employment Act of 1967 (ADEA)

• Age Discrimination Act 1975 (ADA)

The ADA is a very important legislation to the currently and rapidly aging population of America. The act was passed in 1975 to forbid any form of prejudice on the basis of age in the programs and activities which benefit from the federal financial support (Nikolaev and Pavlova, 2016). For example, colleges and schools which are funded by the U.S. Department of Education are bound by the act not to be prejudiced towards people because of their ages. It is applicable to all cohorts (age groups) and allows for the use of some age divisions and elements which are not related to age but are within the precincts of the requirements of the Act.

The institution which is responsible for enforcing the ADA is the Office for Civil Rights (OCR). The OCR monitors and ensures strict observance and adherence to the policies of the Age Discrimination Act in programs and activities which have financial support from the federal government. A victim of age discrimination can file a complaint with the OCR, but if it does not make any finding then the complainant can make claims at the Federal Court. Also, the ADA is stipulated in the Code of Federal Regulations at 34 CFR Part 110 and the regulation of the Age Discrimination offer description for the conducts which are in violation of the Act (Nikolaev and Pavlova, 2016). Conversely, the coverage of the Act does not include age discrimination in the employment sector.

Moreover, on filing a claim in the Federal court under the regulations of the ADA if OCR fails to report a finding, the law has a provision for only two conditions. First condition is if after the elapse of one hundred and eighty days of filing the complaint with the OCR, there is no finding that it has made. Secondly, only after issuance of a finding by the OCR but which is not favorable to the victim. In this case, the OCR is under an obligation to give the complainant a prompt notification and reminder of the right to file a claim in the federal court (Nikolaev and Pavlova, 2016). However, the ADA does not in any way allow for retaliating against filing a complaint with OCR or for the advocation of a right with protection in the Act.

However, while the statute directly prohibits age discrimination, there is room permitting the usage of certain age limits as can is evidenced in the following circumstances:

• In the event that the age distinction is essential to the usual functioning of the program or activity.
• In case there are other aspects apart from age, with significant connection to the objectives of the activity or program.
• Age Discrimination in Employment Act of 1967 (ADEA)

Being a federal statute, the ADEA protects employees and those applying for jobs and who fall in the age bracket of forty years and above from discrimination on the basis of age. The Act provides protection against prejudice in all facets of employment but it does not include elected functionaries, military officers and those working as independent contractors. Protection from age discrimination in this Act focuses mainly on during the process of hiring, compensation, discharge and promotion as well as the terms, conditions, and privileges of employment (Bessey and Ananda, 1991). The entity which is responsible for the enforcement of the Age Discrimination in Employment Act of 1967 is the Equal Employment Opportunity Commission (EEOC).

The ADEA is most applicable to the federal government, employers who have a minimum of twenty employees, labor organizations with membership of at least twenty five people, employment agencies, and state and local governments. Nevertheless, there are statutes in every state which forbid discrimination on the basis of age in employment. Mostly, the laws are applicable to employers with workers below twenty and they always ensure sturdier guard for the older employees as compared to the federal law (Macdonald and Levy, 2016). Also, every state has their own time limits for lodging complaints and steps to resolving the claims.

How the ADEA prohibits age discrimination

The ADEA provides protection against age discrimination in decisions relating to recruitment, sacking, layoffs, promotions, remunerations, rewards, demotion and performance reviews as well as any other employment condition (Macdonald and Levy, 2016). Therefore according to the law, employers lack the powers to:

• Make reference to age or say that a particular age is the most appropriate for advertisement of jobs and materials for hiring. This is strictly questionable however there is no direct illegality to seeking to know the birth or graduation date of a person on applying for a job.
• Set the confines for ages for an employee to be part of training programs.
• Take revenge against an employee in the event of filing a charge for age discrimination or offer assistance to the government in carrying out investigation into a charge.
• Forcefully coerce a worker to retire from employment at a particular age (except in unique cases)

Moreover, the statute proscribes rules and practices which may present the older employees with disparate effects. This is because there might be existence of certain policies that may look like they are age-neutral yet are harsh on the workers who have advanced ages. For example, a district school announcing that it cannot recruit teachers with over twenty years of experience is discriminative towards older teachers yet they may turn out to be very resourceful. Any policy or regulation which may result into unreasonably adversarial impacts on the older employees is illegal; but it can be considered lawful if an employer is able to prove their legality and with a reasonable issue apart from age (Macdonald and Levy, 2016).

Age Discrimination Act of 1975 versus Age Discrimination in Employment Act of 1967

Both ADA and ADEA are federal statutes and in most cases confused to imply the same thing. In fact, they are always interchangeably used due to being anti-age discrimination statutes; nonetheless this is not the case as they differ in the context of their usage (Macdonald and Levy, 2016). While the enactment of the Age Discrimination in Employment Act of 1967 (ADEA) came before the Age Discrimination Act (ADA) of 1975, ADA has no modification or amendment to the ADEA. Unlike the ADEA, ADA does not target the older U.S citizens but rather exists for the general protection of age with no definition for an age group. The implication is that it offers protection for all individuals in all ages against discrimination.

Moreover, the ADEA is particularly intended for the employees and those applying for jobs. The ADA is designed for broader array of people who the federally financed programs affect, inclusive of both the students and employees. Emerging reports show that the different groups of people filing claims for violations with OCR (as provided for in the ADA) are majorly students of varied ages (Nikolaev and Pavlova, 2016). Most of these complaints have been filed because of age discrimination during enrollment to the community colleges and graduate schools. On the other hand, under the ADEA, complaints of prejudice in employment on the basis age areas mostly filed with the Equal Employment Opportunity Commission (EEOC).

Other than the ADEA and ADA, there is also another Act which outlaws discrimination on the basis of age. This is known as the Workforce Investment Act (WIA) of 1998 which outlaws prejudice against participants, applicants and employees because of their ages. The applicants, workers and participants are part of the WIA Title I i.e. the monetary funded programs and activities and also packages which are covered by the One-Stop system (Macdonald and Levy, 2016). The prohibition of the discrimination is covered by the Section 188 of the WIA and it is also the Civil Rights Centre (OCR) which enforces the Act.

Conclusion

Issues of age discrimination are more prevalent in the US and the situation is made worse by the prevailing economic downturns in organizations. Most employers are seemingly embracing this form of prejudice to help them in identifying abilities, competencies and skills which are essential for a job position. The older generation of people is the most unlucky lot because this factor sidelines them on the basis that they have poor mental and physical ability for performing job functions for a higher productivity. The prejudice is further blown out of proportion as the employers consider the older generation as not technologically savvy.

However, the presence of the statutes outlawing the discrimination on the basis of age has greatly helped in eliminating rampant incidences of age related bigotry. For example, the Age Discrimination in Employment Act of 1967 has done away with incidences of denial of opportunities to the U.S citizens so as to be part of the employers’ plans for benefits on the basis of age (Nikolaev and Pavlova, 2016). Also, no matter what age an employee has, the employer has no legal power to lower their benefits except if the cost for benefit provision rises as the age increases. These instances imply that the employer is under an obligation to meet the expenses for offering benefits to workers who are older just in the same way as it applies to the younger employees in strict compliance to the stipulations of the ADEA.