Anne Tergesen at The Wall Street Journal reports:
According to the U.S. Equal Employment Opportunity Commission, age-discrimination allegations against current, former and prospective employers have hit a high -- up 29% to 24,582 in fiscal year 2008, from 19,103 in 2007.
Behind the trend are the recession and the graying of the American work force. As of June, almost 20% of the labor force was 55 or older, up from 13% in 1999. When combined with widespread layoffs, "it's not surprising that a greater number of older people are alleging discrimination," says David Grinberg, a spokesman for the EEOC.
But there's a hang-up. It's last June's dreadful 5-4 Supreme Court ruling in Gross v. FBL Financial Services Inc. In short, by requiring those who allege age discrimination to prove that this was essentially the only cause for their being fired, or demoted or not promoted, getting a favorable ruling has become immensely more difficult.
Previously, workers could win a claim of age bias if they could prove it was a simply a part of the reason for the decision to fire, demote or not promote them. In the past in these "mixed motives" cases, it was up to employers to show they had a legitimate reason for their action. Given that layoffs tend to fall disproportionately on older workers who usually make more money than younger ones, the employer was required to show that that they would have dealt with the situation the same way no matter how old the worker was.
No more thanks to the court. The damage is likely to be widespread. Especially during a long recession like the current one, with industries doing major restructuring of their workforces, employees not expecting to retire for a decade or so can find themselves literally on the street with little recourse.
Over the past decade, anyone with their eyes open has seen many hard-working fiftysomethings ushered out the door. While buy-outs, both generous and stingy, have prompted some to take early retirement, others who had no thought of leaving because it would put them in an economic bind have wound up out of work anyway. Even in a fairly robust economy, finding a new job at comparable pay when you're 56 or so is tough. Experience counts, but employers don't like the salary needs of someone who has been on the job for 30+ years. Thus do many in that age bracket end up working for two-thirds or half or even less what they made previously. And frequently in jobs for which they are vastly over-qualified.
Morever, since it's the rare person over 50 who doesn't have a pre-existing medical condition, employers who might otherwise be willing to pay the higher salary such experienced people deserve, they are loath to hire in that age bracket because it's likely to increase their group medical rates. Somebody 20 years younger and cheaper with a clean medical record is likely to get the job.
So, the best thing to do if you're 50 or so is hang onto that job with all your might. Age discrimination legislation was meant to make that task a little easier. Five members of the Supreme Court have succeeded in making far more difficult.