cross-posted from Working America's Main Street blog where I am a featured guest blogger
Unemployment has remained at record levels for older workers, who also face the longest average duration of joblessness of all age groups. Half of the unemployed age 55 and older have been out of work for six months or more.
While the unemployment percentage rate of older workers is significantly lower than for other age groups, the longer duration of joblessness indicates how much tougher it is for older workers to find new jobs. And the difficulty of gaining new employment for older workers comes as their need for jobs and income has increased.
With teenagers and other younger workers facing unemployment rates of 20 percent or higher, the need for families to supplement incomes through the work of older family members has become even more pronounced. When spouses or other family members are out of work, older workers have sought to re-enter the workforce, find new work if they've been laid off, or try to maintain their jobs longer.
While the labor force participation rates for those 16-to-24 and 25-to-54 years old have remained steady or declined since 1991, the participation rate for those 55 and older has risen by 10 percent, and has continued to rise even during the Great Recession.
As of February 2010, more than 2.2 million older workers were officially unemployed -- once again, nearly half for six months or longer.
Those older workers trying to keep their jobs face employers who appear more willing to continue eliminating those jobs -- often higher-paid due to longer, loyal employment tenures -- as part of the relentless rounds of cost-cutting.
And, thanks to the 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc. employers are feeling emboldened to terminate, demote or replace older workers with less concern for potential age discrimination claims. The Washington DC Law Update summarized the
impact of the decision last summer:
In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the "but for" cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.
The Connecticut Employment Law Blog wrote:
I like the Manpower blog's summary even better:
Plaintiffs used to be able to state a claim if age was a factor in a decision. Now, they must prove it was the factor.
Last week Congressional committee hearings were held in both the House and Senate to determine if a new law is needed to overturn the Gross v FBL decision and strengthen federal legal protections for older workers. Bills have already been introduced by House Education and Labor Committee Chairman Rep. George Miller (D-CA), Senate HELP Committee Chairman Sen. Tom Harkin (D-IA) and Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT).
At the Senate Committee hearing Sen. Harkin explained the impact of the Supreme Court's decision and introduced Iowan Jack Gross, the plaintiff in the case, saying:
We have convened this hearing to examine the issue of employment discrimination against older workers and the need, in the face of a very misguided and harmful Supreme Court decision, to enact legislation to ensure that older workers are treated with the fairness they deserve.
"We will hear today from my fellow Iowan, Jack Gross. Jack devoted the prime of his life, over a quarter century of loyal service, to one company. How did the company reward him for his dedication and hard work? It brazenly demoted him and other employees over the age of 50, and gave his job to a younger employee who was significantly less qualified.
"Over 40 years ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act, or ADEA. Very simply, that act made it unlawful to discriminate on the basis of age. When Jack sought to enforce his rights under this law, a jury of fellow Iowans ruled in his favor and concluded that age had been a motivating factor in his demotion.
"Yet, when his case was appealed to the Supreme Court, a slim, activist majority of five justices overturned the jury verdict and decided to rewrite the law.
"For decades, the law was clear: If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. The Court, however, addressing a question it did not grant cert on, tore up this decades-old standard and imposed a new standard that the Supreme Court itself had rejected in a prior case and Congress had rejected when we enacted the Civil Rights Act of 1991.
"As a result of the Supreme Court’s ruling, it is now prohibitively more difficult to prove age discrimination. A victim of age discrimination now bears the full burden of proving that age was not only a motivating factor but the decisive factor. This extremely high burden radically undermines older workers’ ability to hold employers accountable. Too many employers are now empowered to discriminate on the basis of age as long as they purport to have some other reason for their decision.
Read a summary of the Protecting Older Workers Against Discrimination Act. You can view the Senate HELP Committee hearing and read the testimony here. Information on the House subcommittee hearing last week is here.
With all workers of all ages, employed and unemployed, under siege in this deepest of all recessions since the 1930s, it is that much more vital that we all stand together. When younger workers can't find jobs, we all suffer. When older workers are targets of discrimination, we're all targets -- and the nation's soul is scarred.