Age Discrimination:
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Age Discrimination: Covering Aging in America A Presentation to the NPF Living Longer Fellows September 19, 2022 Washington, D.C. Peter Gosselin peterggosselin@gmail.com 202-251-3945
Four Aims Winding path to my current august age Where the law stands on age discrimination A coverage project that grew out of my experience Implications for age coverage
My Path: The Broad Strokes 1975-2009: From NY State s smallest daily to Globe Spotlight Team to LA Times. 2004: LA Times series, later a book, shows economic risk is being shifted from the broad shoulders of business & government to the backs of working families, causing household incomes to swing widely, boosting the danger of steep financial falls 2006: Urban Institute 2008: My wife and mother of our then 11-year-old twins dies of cancer. Our household income drops in half 2009: U.S Treasury & HHS Dec. 2014: Twins get into college early decision. Sept. 2015: Laid off the week the kids start college. Perfect the art of getting to the first then-Skype interview. I m out 15 months.
The Law: Erosion of Right to Protection 1967: Age Discrimination in Employment Act (ADEA): Age was going to be included among the protected categories in the Civil Rights Act of 1964, but was pulled to study adding narrow exceptions: Reasonable factors other than age Bona fide occupational qualification 1967-Early 1990s: Courts treated ADEA & 1964 Act as nearly identical with key provisions of one assumed to apply to the other. Congress expanded age protections, largely banning mandatory retirement and, in 1991, requiring employers to disclose age data in layoffs. 1990s-Present: Increasingly conservative courts peel apart the two laws, expand exceptions, shift burden of proof.
The Law: (contd) 1993: Supreme Court ruled that an employer did not discriminate in firing a 62-year- old weeks before he became eligible for his pension, reasoning pensions are based on length of service, not specifically age. 2009: Justice Thomas for the majority raised the burden of proof for age discrimination beyond those for race and other types of bias and arguably beyond the logical ability to be met. Plaintiff must prove that no factor other than age is involved in a layoff, demotion or other adverse employer action. Related Trends Arbitration: Supreme Court hugely expanded a 1925 law that allowed some business disputes to be handled by a private third party, rather than courts so it now reaches essentially every legal link between individuals and companies. Studies show employment arbitration uniformly tilts in favor of companies.
The Law: (contd) Class-action Waivers: As a condition of hire, companies require new employees to sign away right to join with others to bring legal claims including for age discrimination. ? Majority of American employees now covered by such waivers In a Supreme Court hearing on waivers, Justice Breyer observes extinguishing workers right to band together as a legal class, which has been at the heart of US labor relations policy since FDR, would cut out the entire heart of the New Deal.
Coverage: Origins of the Project Fundraising, then ProPublica Early Going: Situationers & waiting for a tip or leaked document My Story: Under the hed: Over 50 and looking for a job? We d like to hear from you IBMers Find Us: 1,000, then 1,400, eventually over 2,000 tell us their stories Resource Action : Company euphemism for systematic layoffs & firings
IBM: The Reporting QUESTION: How to make sense of this many stories? Baseline Theme: IBMers couldn t get information about the layoff process, pattern, numbers Patterns: e.g. workers told they could apply for other IBM jobs, but never landing them Units: Seeing patterns across different parts of the company Documents:
IBM: The Findings Denied laid-off workers information the ADEA requires companies to provide so workers can decide whether they ve been victims of bias and take legal action Tilted layoff assessments against olderworkers even when the company also rated them as high performers . E.g. point system that rewarded those in jobs for fewer years. Labeled job cuts retirements in a move that reduced layoff counts, where high numbers can trigger disclosure requirements Boosted resignations by requiring long-distance moves Told laid off workers their skilled were out of date, then rehired them as contractors at lower pay and fewer benefits Layoff estimate 20,000 US workers 40 and over in five years was too low
Pushed Out: The Reporting QUESTION: Is IBM, a century-old tech firm in a rapidly changing industry, a one-off or is there something larger going on? Another Way to Ask: The law defines retirement as voluntary. Are older Americans voluntarily retiring or being pushed out? Health and Retirement Study: US-funded, nationally representative sample of 20,000 Americans from age 50 to end of life, chief source of quantitative data about aging in America. Voluntary? Layoffs and firings are easy to categorize as involuntary and employer-driven. But what about those who say they retired or quit on their own? Need to look at surrounding circumstances
Pushed Out: The Reporting (contd) Highly Attached: Focused on workers aged 50+, employed full-time, with the same employer at least five years and observed at least until at least age 65. Job Departures with Bite: Looked only at departures layoffs, firings, self- described quits or retirements that were followed by at least six months of unemployment or resulted in at least a 50% drop in weekly earnings for at least two years. Personal Conditions: Health problems, other big life circumstance-changes, continued employment through full observation Employment Conditions: Besides layoff or firing, signs of deteriorating working conditions, e.g. cuts in pay, benefits, hours; change in work location or content, problems with supervisors Unexpected: Abrupt changes from plans with big negative consequences
Pushed Out: The Findings A majority of working Americans who enter their 50s employed full-time in stable jobs are laid off at least once or leave jobs under such financially damaging circumstances that it s likely they were pushed out Only one in 10 ever again earns as much as they did before their employment setback. Less than 20 percent of working Americans end their paid work lives under circumstances that fit the dominant picture of retirement as a welcome, voluntary and final departure from employment. Education is not a shield against being pushed out. 58 percent of those with high school educations experience damaging layoffs or involuntary separations. The share for those with college educations is 55 percent. The pattern holds across gender, race and ethnicity.
Implications: What to Cover? QUESTION: What about aging should you be covering? Two Possibilities: Financial: Focus on 401(k)s, IRAs, Social Security. Health & Death: Possible focuses: On institutions such as Medicare or nursing homes or on personal stories My Take: The greatest challenge of growing older is not how to finance it. And we were put here to do more than to get sick and die. Marginalization: Aim to cover the roles of aging and older people in society. But aging and older people don t have much of a role, so focus on how they are shunted to the margins to their detriment, society s and the ability of each of us to see the poignancy of human endeavor.
Marginalization: Two Quotes There is no harsher verdict in most men s lives than someone else s judgment that they are no longer worth their keep. It is then, when the answer at the hiring gate is You re too old. that a man turns away finding nothing to look backward to with pride and nothing forward to with hope. Willard Wirtz The Older American Worker: Age Discrimination in Employment Report of the Secretary of Labor -- 1965
Marginalization: Two Quotes We rarely come to anything like a masterly grip till the shadows begin to slant eastward and, for a season, which varies greatly with individuals, our powers increase as the shadows lengthen. G. Stanley Hall Senescence, The Last Half of Life - 1922
